Today, Explained - Trigger bans

Episode Date: June 27, 2022

The Supreme Court’s decision was most immediately felt in states that pegged abortion bans to the fall of Roe v. Wade. This episode was produced by Victoria Chamberlin, fact-checked by Laura Bullard with Matt Collette and Amina Al-Sadi, engineered by Efim Shapiro, and hosted by Sean Rameswaram, who also edited. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

On Friday, the Supreme Court of the United States made history. They rewrote history. The country took a big 50-year step back. And then, like dominoes, trigger bans on abortions went into effect. The attorney general of Missouri has now just tweeted that it's the first state to let its trigger law spring into action. We are prepared to immediately ban abortion in Arkansas with the overturn of Roe versus Wade. Here in Kentucky, abortions are now illegal because of what's known as a trigger law.

More than a half dozen trigger bans are now law in the United States. On Today Explained, we're going to get into where you can and cannot get an abortion in America and whether this country is really going to prosecute all the people who want to terminate their pregnancies. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit

superstore.ca to get started. Today Explained, Sean Ramos from here with Amanda Roberti, professor of gender and politics at San Francisco State University, who's going to tell us how abortion in America looks now that the Supreme Court has overturned Roe v. Wade. It looks chaotic. The highest court in the land, reverse course on 50 years of federal constitutional rights to an abortion, sending the issue to the states. There is going to be uncertainty over what the legal status of abortion is, how long it'll stay legal in any given state. The ones that do have trigger bans and trigger ban-like laws are also going to be a little bit chaotic and in flux

because some of those laws won't go into effect right away, some five days later, some 30 days. So it is a mess, basically. We won't go back! We won't go back! We won't go back! What it looks like is a slippery slope towards abortion being banned in about half of our states. For people who are unfamiliar with the term, what exactly is a trigger law? And how exactly do they work? Because it sounds like it kind of varies. There's a few different ways in which to categorize abortion bans in the absence of Roe, and they tend to get lumped together with the term trigger law. And there's a few different camps here. The actual trigger laws are the ones that explicitly ban abortion.

If Roe were to be overturned, which it was, 13 states have those. I am humbled to be a part of this and the first attorney general in the country to effectively end abortion. Missouri was the first one to go ahead and enact their trigger law. What are the other 12? Arkansas, Idaho, Kentucky, Louisiana, Mississippi, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah. And I think Wyoming is actually Wyoming is the most recent trigger ban. A lot of them have a kind of recommendation that the attorney general has to review that court case and then make a recommendation within 30 days. And a number of these states have already had their trigger bans go into effect, including Utah. Utah's trigger law banning abortions took effect this evening. Oklahoma.

The womb is now, in Oklahoma, the safest place for a child to be. Kentucky, Alabama, Arkansas, Louisiana, South Dakota. Well, what happened with the Supreme Court decision this week is that abortions in the state of South Dakota immediately became illegal unless it was to save the life of a mother. That's trigger-ban camp. What are the other camps?

There are seven states that have pre-Roe laws. They can be at any point before Roe v. Wade was a thing. And so there's seven states that have these laws that would criminalize abortion that just kind of never got taken off the books. A good example of that is Michigan. They have a law from about 1931 that criminalizes- 1931! Which it feels like right now, right? But it criminalizes abortion, but it was unenforceable because of Roe v. Wade. So these are old laws that were negated by Roe v. Wade, but are now essentially active again because Roe v. Wade is gone.

They could be enacted. And again, that's going to come from the attorney general in that state, which in Michigan, she's actually indicated no. The 1931 law is unenforceable as of this moment. So everything remains the same as it was yesterday at this time, but just for now. And it looks like there's some overlap here in camp ancient laws. In addition to Michigan, there's Alabama, Arkansas, Oklahoma, Wisconsin, but then also Mississippi, Texas, West Virginia, and Arizona. What's Camp 3? The states that actually tried to pass abortion bans after Roe was decided, but they've been blocked by courts because they were unconstitutional. Camp Unenforceable. What are some of the states in this camp? Georgia.

Now, see, again, they overlap. So Iowa. Kentucky. Louisiana. Mississippi. Missouri. You got North Dakota. Ohio.

South Carolina. Tennessee. Texas. Utah. Do we know between these three camps, trigger ban, ancient laws, and unenforceable, what happens first? Is there like an order of operations here? I guess it kind of depends on, like I said, the state attorney general, what kind of recommendation they're going to go forward with offering the governors of these states. It could be that some of them move on their complete and total bans. Some might opt for maybe one of the ones that are just a first trimester ban. And I say just, but it's still almost like not having

abortion be accessible at all in that state. So a six-week ban or 12 weeks, you know, a little bit later. I think it is discretionary in a lot of ways. And I also think that it almost matters what has happened to the ban. So if it's easier to lift a federal court's injunction, like Ohio's doing right now. It's filing a motion to lift a stay on their six-week ban. We can now tell you that Ohio's heartbeat bill is now officially the law of the land in the state of Ohio. Or is it just easier to enact a pre-Roe ban or something like that? I know there's a lot of stuff to figure out. A lot of attorneys general need to make decisions. But how extreme are these laws? Are people going to

be jailed in states like Missouri and Oklahoma and Texas? Are they going to be able to get an abortion if they're raped? Are they going to be able to get an abortion if their lives are at risk? So a lot of the states that do have bans have exceptions for rape, incest, or kind of life-endangering physical conditions. That specifically is about physical conditions. It doesn't include emotional or psychological conditions that might threaten the pregnant person. So, there are some exceptions, but yet this is going to be a huge hindrance to access. I mean, folks will have to travel out of states if they can afford it. Most folks have trouble affording it, right? It's already expensive. So yeah, this is going to be very impactful for millions of people across the nation. I should note that there have been states that have actually prosecuted

pregnant folks who have had stillbirths because they suspect something different, self-managed abortion or some kind of malfeasance, or they've been prosecuted for abuse of a corpse. That's happening in Indiana and Alabama. Marshae Jones was shot in a fight near Birmingham, Alabama. She was five months pregnant at the time. Jones's story became national last week when a grand jury indicted her for the loss of her own fetus, but did not indict the woman who shot her. Are there states that do not have exceptions for the health of the mother or for rape or incest? Almost every single one does. But the thing that actually is pretty restrictive is to what degree

these exceptions are actually kind of offered, right? So like in some cases, in some states, the rape exception has to come along with actually reporting that rape to law enforcement, a lot of restriction within that exception. It's going to be dangerous, right? You have some activists who are suggesting things like if you self-manage your abortion, which is safe, right? But if you do self-manage it via ordering pills online or telemedicine or something like that, if you have to present to a hospital afterwards for some kind of checkup or to not tell them that you self-managed, but just that you had a miscarriage. And I don't know if that's the best advice, but that advice is being spread

around is indicative of the secrecy that comes with criminality. So before Friday, abortion in the United States was sort of a bit of a jumbled mess. And after Friday, abortion in the United States will continue to be just an even more totally jumbled mess. Even as fast as abortion laws tend to change with Roe in place, now states are able to kind of go at it, right, and kind of do whatever they need to. And it's not going to be this legislative process so much for the states that have trigger bans. It's going to be up to their attorneys general and their governors. And so

you're looking at like one or two people who are going to be just enacting these laws and not like following a bill through the legislative process, right? Things are going to happen even more quickly. And there's a lot of kind of fallout that might happen thereafter. That was Professor Amanda Roberti, San Francisco State University. More on the fallout in a minute on Today Explained. Support for Today Explained comes from Aura. Thank you. easy to share unlimited photos and videos directly from your phone to the frame. When you give an AuraFrame as a gift, you can personalize it, you can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an AuraFrame for himself. So setup was super simple. In my case, we were celebrating my grandmother's birthday, and she's very fortunate. She's got 10 grandkids. And so we wanted to surprise her with the AuraFrame.

And because she's a little bit older, it was just easier for us to source all the images together and have them uploaded to the frame itself. And because we're all connected over text message, it was just so easy to send a link to everybody. You can save on the perfect gift by visiting AuraFrames.com to get $35 off Aura's best-selling Carvermat frames with promo code EXPLAINED at checkout. That's A-U-R-A-Frames.com, promo code EXPLAINED. This deal is exclusive to listeners and available just in time for the holidays. Terms and conditions do apply. BetMGM, authorized gaming partner of the NBA, has your back all season long. From tip-off to the final buzzer,

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Papa, papa, can't you see? What the courts have done to me. Today Explained, we're back. We wanted to hear from someone who could help make these trigger bans feel real. My name is Jane Armstrong. I'm a licensed clinical social worker, certified in perinatal mental health in the state of Texas. Jane also has a private practice where she counsels parents who have had to end pregnancies due to medical issues. She was motivated to offer her expertise after having to terminate her own pregnancy. She shared her story with us.

This was my first pregnancy. My husband and I were very excited to find out I was pregnant in October 2020. Everything went very smoothly through the first trimester. We had good scans. I felt like shit sometimes with morning sickness and all that, but I took that as a good sign that things were chugging along. Then in January of 2021, my doctor ran a blood test that came up with a result she was a little concerned about. She called and said she wanted to refer me to a maternal fetal medicine specialist or,

you know, a high-risk pregnancy doctor for an early anatomy scan. They found that our son Frankie had a very severe form of spina bifida where his spinal cord had protruded all the way through his spinal column and the skin on his back, and that had caused damage throughout the cord and his neural development. So there were issues in his brain and severely clubbed feet. It was a lot to take in, and the doctor referred us to fetal surgeons in Houston who could potentially, if we qualified, perform surgery to repair the lesion on his spine while he was still growing in my womb. I clung to that for a little bit thinking thinking maybe that's it. That's the thing that will get us through this.

We were able to consult with surgeons over the phone and realized pretty quickly into that phone call that this was not the, quote, fix we thought it would be. Our son would not have any damage reversed. It would just prevent further damage. So what had already been done to his spine, his brain, his feet, those would still be there when he was born. The surgery itself is an elective procedure. so there were concerns about how much would insurance cover? What will we do with a medically fragile newborn if we're already struggling to pay medical bills from fetal surgery? Already we were incredibly overwhelmed with what our next steps would be. With a baby we had become very attached to and had planned for and loved dearly and very much wanted to bring home.

We spent some time, just my husband and I, talking through what we thought would be the, I was about to say the best, but it's really the least worst option for our family. We also knew that we were doing so under a ticking clock. This was pre-SB8. At the time, there was a 20-week abortion ban that I later learned could extend to 21 weeks and six days for certain fetal anomalies or health issues of the pregnant person. All I knew then was 20 weeks, we're already at 18 and a half, what are we going to do?

And eventually, we realized we were really deciding between giving our son life and giving him peace, and we chose peace. They were able to get me connected with a Planned Parenthood pretty close to home, and they were able to get us in for our first of three appointments pretty quickly and took such wonderful care of us despite lots and lots of unnecessary barriers and legal obstacles designed to make me feel like I was doing something wrong or like I didn't understand the weight of the decision that I had made. The people who make these laws or did at the time, and this new decision, will never know me, will never know my son, will never care for either of us. But that was absolutely the right decision for our son and our family, as sad as it is and as heartbreaking as it continues to be. I miss him every day,

and I'm very grateful that I had access to that care. So this procedure you had to terminate your pregnancy to give Frankie peace, when you did it in early 2021, it was legal. And now it would be illegal under SB 8. Is that right? Basically, if that were to happen today, anyone who aided or abetted that procedure, be it my husband who drove me to the clinic and had to wait outside with protesters for two days while I was in there.

My doctor who referred me to them, be it anyone who worked inside the clinic, they could be open to being sued for a bounty of $10,000 if they were found to have supported me through an abortion. They call it a heartbeat bill. It's not. There's no heart at five or six weeks pregnant, but there's a flicker of cells. My son did have a heart and a heartbeat that I had to listen to out loud in the exam room

as part of a medically unnecessary but legally mandated portion of my initial appointment. There was also a medically unnecessary ultrasound. The screen has to be turned towards the pregnant person. The Doppler heartbeat has to be projected into the room so that I can hear it. All things designed to intimidate and shame. I knew to expect these things, but I thought how effective this could be if I didn't know to expect this or if my doctor didn't have the presence of mind to read what she needed to read and then say, this isn't true, this isn't true, this is a very safe procedure. And I felt very conflicted. I wanted to stay connected to my son and I wanted to see him or hear his heartbeat. And I knew it was going to be the last time. So it was very, very hard,

even then. And now that wouldn't be an option for anyone in the state of Texas at that point in pregnancy. And even what is on the books now is set to disappear with a trigger law very soon, now that Roe has gone away. And your experience inspires you to consult other people going through experiences like these? Very much so. I think the beginning of my healing was really in connecting with other parents who had been through a similar experience. Even finding the term termination for medical reasons, it took a while. I didn't know what to Google to find other people who had been through this. You know, Googling the word abortion can come up with some really inappropriate

and scary things when you're already grieving. With termination for medical reasons, it's the stigma inside of a stigma where even in pregnancy and baby loss communities, you're not necessarily sure that you'll be safe or accepted there. And there's a lot of unique trauma and experiences that TFMR parents have been through that they may not know how to process, especially seeped in the shame of our society's narrative around abortion. Tell us what it's like having a practice like this in Texas, when, as you said, someone could get sued for aiding and abetting an abortion, even if it's for a wanted pregnancy with some serious medical conditions, like the case you had yourself?

I mean, it's scary. It's scary to have a uterus in this state and country right now. Having this business certainly felt like a risk. Parents now kind of have to find their own way and they have to do so outside of their home state along with anyone else in Texas and now any of these other states with trigger laws. All of those people are going to be accessing the same resources that are limited. These people still need support. And they deserve support and care and love for the position that they never, ever wanted to be in. I do feel afraid sometimes because the law is designed to make me feel afraid.

It wants me to back up and shut up. And it wants me to leave these folks out in the cold. So while that sometimes feels effective, at other times I feel very spurred on to fight harder, yell louder, reach out more, and make those connections so that these parents are not left on their own when they are at their most vulnerable and most hurt. That was Jane Armstrong in Texas,

where there's SB8 in addition to a trigger ban that has yet to go into effect. Our show today was produced by Victoria Chamberlain, engineered by Afim Shapiro, fact-checked by Laura Bullard with help from Matthew Collette and Amina Alsadi, and edited by me. I'm Sean Ramos for them.

It's Today Explained. Thank you.