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"Trigger laws" in these states would make abortion illegal if Roe v. Wade is overturned

States passing laws to make abortion illegal
More states are passing laws to make abortion illegal if Roe v. Wade is overturned 02:26

Arkansas became the fifth state to preemptively outlaw abortion this week, preparing for a day when Roe v. Wade could be overturned, and the laws on abortion access get kicked back to the states.

Louisiana, Mississippi, North Dakota and South Dakota have already passed similar laws. Four more states — Kentucky, Ohio, South Carolina and Tennessee — have such legislation, dubbed "trigger" laws, in the pipeline.

"What trigger laws do is that they make it clear that the state will ban abortion the moment that Roe is overturned," said Andrea Miller, the president of the National Institute for Reproductive Health, in a telephone interview with CBS News.

Trigger laws aren't new. When Roe v. Wade was decided in 1973, Idaho and South Carolina immediately passed them, though Idaho's was repealed in the 1990s, said Elizabeth Nash, a senior state issues manager at the Guttmacher Institute. Before President Trump took office, one or two conservative states would introduce trigger laws every legislative session, but the measures usually failed. This year has been different.

"There's been so much more this year," Nash said. "And these are getting attention, they're not just getting introduced and fizzling out like they used to."

Abortion activists on both sides of the issue say that there's been a renewed interest in trigger laws because of the increasingly conservative Supreme Court and the potential to overturn Roe. Arkansas State Senator Jason Rapert, the primary sponsor of Arkansas's trigger law, said there was "a real opportunity in the next couple of years," to undo the landmark Supreme Court decision.

"Even the pro-abortion forces in the country see and sense that there's an opportunity for change," Rapert said in a telephone interview with CBS News.

Liberal states are also preparing for that potential, passing laws that would maintain or expand access to abortion. In New York, lawmakers passed the "Reproductive Health Act" last month, which allows for abortions after 24 weeks if the fetus is not viable or if there is risk to the mother's health.

Similar laws in Virginia and Vermont have been introduced and gained traction as pro-choice politicians have grown concerned, Miller said. "It would be difficult to overstate how severe the threat to Roe v. Wade is right now."

"You have this set of states who are in a race to the bottom in terms of abortion rights and access and you have another set of states who are stepping up in a moment when Roe v. Wade is under fire," Miller said.

In the coming years, the Supreme Court will have plenty of opportunities to revisit Roe. There are at least 20 specific cases in the pipeline that potentially chip away at abortion access, said Nash. Most abortion activists aren't anticipating a full overturn of the decision, but rather a continual chipping away at the ruling.

"Rather than just cutting down the tree, I think you're going to see them trimming and pruning it back," said Jerry Cox, head of Arkansas's Family Council, in a telephone interview with CBS News. "I think, and hope, there will be a day in the not so distant future where Roe is virtually irrelevant."

Cox and his group worked closely with Rapert to pass Arkansas's new trigger law. The law, like the ones in Louisiana, Mississippi and South Dakota, grants exceptions for when the mother's life is in danger. Mississippi and North Dakota would grant exceptions in the event of rape and only North Dakota would allow for exceptions in the case of incest, according to Nash.

Not all advocates who want to limit abortion have bought into trigger law strategy. Rose Mimm, the executive director of Arkansas Right for Life, an anti-abortion rights group, said that her group has been disappointed by recent Supreme Court decisions that haven't restricted abortion access and because of that, they're focusing on immediate outcomes like heartbeat bills and mandatory waiting periods.

"We're interested in saving babies now," Mimm said in a telephone interview with CBS News. "The trigger bill does nothing to save babies." 

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