Sep 2, 2021 - Politics & Policy

Here are the next states that could pass abortion bans after Texas

States that have passed near-total abortion bans
Data: Axios Research; Map: Sara Wise/Axios

An abortion ban in Texas successfully went into effect, making the procedure illegal when cardiac activity is detected, usually as soon as six weeks and well before many people know they are pregnant.

The big picture: Over a dozen states have tried to enact laws similar to the near-total abortion ban in Texas, but they have mostly been blocked or struck down by federal or state judges. Now, with this current precedent, some of these states could try again.

  • North Dakota, Iowa, Arkansas, Alabama, Mississippi and Georgia all attempted to implement restrictive bans that were declared unconstitutional.
  • Missouri, Kentucky, Tennessee, South Carolina and Ohio passed laws that were temporarily blocked.

Other states, like Idaho and Louisiana, have what are commonly known as "trigger laws," meaning that their abortion restrictions could become effective if other similar legislations are passed.

  • Idaho's bill barring abortion past six weeks contains a clause that says the law will go into effect if any U.S. appellate court upholds an abortion restriction based on the cardiac activity of the fetus.
  • In Louisiana, their bill banning abortion once cardiac activity is detected would have gone into effect if a similar bill in Mississippi, which was struck down by the Supreme Court, would have gone into effect.
  • Some states also have trigger laws that would go into effect if Roe v. Wade gets overturned.

The latest: The Supreme Court late Wednesday allowed the Texas ban to continue in a 5-4 vote, rejecting an emergency application by abortion-rights groups to block the restrictive law.

Yes, but: The five conservative justices said in their unsigned opinion that the decision should not be read as an indication of whether the justices believe the law is unconstitutional or not.

  • A lower court was originally scheduled to hear arguments about the ban on Monday, but the court's supervising appellate court, the 5th Circuit Court of Appeals, canceled the hearing without explanation, per The 19th.

What's happening: The Texas law — which makes the procedure illegal when cardiac activity is detected (around six weeks) — is unique because it deputizes private citizens to enforce the law.

  • It offers them at least $10,000 if they successfully sue someone for "aiding and abetting" an abortion after six weeks.
  • The legislation is difficult to legally challenge because "[t]he Constitution, including Roe v. Wade, only applies against the government, it doesn’t apply against private individuals," Laurence Tribe, a constitutional law expert at Harvard, told TIME.
  • Of note: Chief Justice Roberts said the law was "not only unusual, but unprecedented," adding that he would have temporarily blocked the law to allow for lower courts to debate whether Texas "can avoid responsibility for its laws in such a manner."

Between the lines: Oklahoma is the only other state that this year passed a similar bill to Texas'. Gov. Kevin Stitt (R) in April signed into law a bill that criminalizes abortions around six weeks, it is set to go into effect on Nov. 1.

  • The law, House Bill 2441, says that anyone who conducts an abortion in violation "shall be guilty of homicide."

What to watch: Lawmakers in Florida have already said they will be considering similar restrictive bills, which are also known as "heartbeat bills."

  • Texas Right to Life, an anti-abortion rights group that helped write the legislation, is working with anti-abortion rights activists in other states who want to replicate the ban, NPR reports.
  • John Seago, legislative director for Texas Right to Life, told TIME that Texas' law was "an alternative to that typical path that pro-life laws go down."
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