The Broader Implications of Trigger Laws

BY OLIVIA MCDOWELL

Image Credits: @mcoswalt Unsplash (Unsplash License)

The Dobbs v. Jackson (2022) decision, which returned the question of abortion legality to the states and dismantled 50 years of Supreme Court precedent, is still being discussed due to its implications on reproductive healthcare nationwide. It was no surprise that conservative states began to enact stricter abortion bans following this decision. However, some of these bans bypassed the democratic process of drafting, introducing, and then passing legislation post-Dobbs; in fact, some states used loopholes to enact bans while Roe v. Wade (1973) was still active. Before Roe was repealed, 13 states had previously passed ‘trigger laws’: pre-established bans on abortion set to spring into effect soon after Roe was overturned. Three of these states had bans that went into effect immediately, three states had bans that went into effect 30 days after Dobbs, and seven states required only a certification from the state attorney general to implement an abortion ban. These trigger laws made national headlines, as they appeared to sidestep normal legislative processes and ran counter to public opinion on abortion.

The recent prominence of abortion trigger laws prompts questions about their development and current role in American legislative systems. The modern trigger ban may be rooted in the idea of revival laws, statutes determined to be unconstitutional but held on the books to be reenacted if the decision is later invalidated. This may not necessarily be due to malicious intent – it is more difficult to repeal a law than to enact one, implying that recall may not be worth valuable time in a legislative session. For example, Texas technically has a law that atheists cannot hold elected office that was never repealed after Torcaso v. Watkins (1961) established that a public office holder cannot be asked to believe in God. This phenomenon was evident post-Dobbs as many abortion trigger laws actually functioned to reactivate pre-existing abortion bans. Sunset clauses, which terminate a statute after a set period of time, are similar to trigger bans in that they legislate in relation to the future. Sunset clauses are also similar to trigger legislation but function in the inverse fashion, deactivating statutes while trigger laws activate them. For instance, sunset clauses in the USA PATRIOT Act deactivated sections of the government surveillance program in 2005.

Observing trends related to contemporary trigger laws provides useful information. Trigger laws are strictly used in state legislatures rather than at the federal level, and they are also more prevalent in states with Republican-controlled legislatures. The idea of trigger laws as used in the context of abortion is a relatively new one; abortion trigger laws were introduced in large quantities from 2005 to 2007 and 2019 to 2021. This was no coincidence – these periods were when the Supreme Court leaned conservative and so there was a chance to overturn Roe v. Wade. Interestingly enough, the source of this legislation that has taken hold across the country can be traced back to two pro-life interest groups: Americans United for Life (AUL) and the National Right to Life Committee (NRLC). These groups drafted model legislation and used their wide networks to circulate it to state legislatures across the country. This template format allows anti-abortion bills to be introduced and pass much more quickly than a standard bill.

Although trigger legislation has recently made headlines as it relates to abortion restrictions, there are a few other uses for these laws in the United States. Eight states use trigger laws to end Medicaid expansion if federal funding falls below 90 percent. Another example of a trigger law unrelated to abortion is in Indiana, where there is a preemption law. This statute dictates that municipalities cannot enact gun control laws that differ from those of the state. Despite this preemption law, the City-County Council of Indianapolis and Marion County uses trigger legislation as an attempt to counter Indiana’s lax gun restrictions. If Indiana’s preemption law was overturned, stricter gun control laws would be implemented immediately in these two counties. Finally, Iowa and New Hampshire have trigger laws mandating that the election administrators place the Iowa caucuses and the New Hampshire presidential primary ahead of any other state's.

Are these trigger laws useful? They appear to be nothing more than a clever way to subvert controlling law on specific social issues. Nevertheless, they do have some utility in terms of funding government programs. If federal Medicaid funding falls below the 90 percent threshold, which is increasingly likely with a federal Republican trifecta, state governments will bear a much heavier cost. In this context, it is noteworthy that the trigger legislation does not technically conflict with an existing law. Instead, it is merely predicated on a specific circumstance. Nevertheless, even this limited utility in funding does not change the highly suspect legality of trigger legislation.

The story of abortion trigger laws is that of two conservative activist groups with undue influence finding a loophole in the political process. If a trigger law that was written in 2005 becomes activated in 2022, does it truly represent the current will of the people? These trigger laws have no expiration date and can be easily manipulated to keep state laws entrenched in the past. Abortion trigger laws display this problem: although the proportion of Americans in favor of abortion bans has dropped since Dobbs, severe abortion restrictions or bans have been increasingly enacted across the country. The success of abortion trigger laws implies a potential future movement for other social policies, such as gay marriage. Ultimately, a Supreme Court ruling needs to be issued to regulate or even decide the legality of trigger laws. In the interim, perhaps advocacy groups should attempt to establish guidelines for these trigger laws. This could entail adding an expiration date or putting existing trigger laws as a ballot referendum for voters every few years. Without meaningful reform or regulation, trigger laws will continue to undermine democratic principles by prioritizing the agendas of a select few over the evolving will of the people.

This article was edited by Alana Khona and Nika Tarkian.