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Trigger Bans: The Next Right Step?

By: Kyleen Wright, Linden Patterson

Roe v. Wade has been on a collision with science from the beginning. Medical advances that have improved sonograms and pushed the viability date to around 22 weeks have only accelerated that collision. To be sure, however, the addition of Justice Kavanaugh to the nation’s high court has heightened hopes and fears that Roe’s demise is looming. In response to the changing makeup of the Supreme Court, states like New York, Vermont, New Mexico, Illinois and a few others appear locked in competition for the dubious distinction of Abortion Rights Capital of the US. Abortion advocates and their allies in the Democratic party have moved at a feverish pace to shore up unlimited abortion rights in liberal states, in many ways mainstreaming the back alley in the process. They have eliminated safety measures for women, as well as repealed previously passed protections for viable preborn babies, infants born alive and babies killed by third parties against the mother’s wishes. While several pro-life states have pursued Heartbeat bans or outright abortion bans, only to see their implementation blocked by the courts, a few states have chosen a more strategic ban: the trigger ban. What is a trigger ban? Perhaps Tennessee said it best by naming its trigger ban the Human Life Protection Act. By definition, a trigger ban is a ban that is triggered into effect by a specific event. In this case, the ban is triggered into effect when the Supreme Court overturns, or even chips away, at Roe. Some trigger bans, such as HB 2350 which was filed (but failed to advance) in the Texas legislature this past session, would even work to restrict abortion and protect as many babies as possible in the event the Court overturned only part of Roe, going into effect quickly, without the necessity or delay of an additional legislative fight. A ban, even one that doesn’t go into effect until the Courts allow for more protection for unborn babies, has several advantages. First and foremost, trigger bans represent a real effort on the part of the pro-life community to be proactive and not merely reactive. The bans are legally sound and not subject to legal battles that often end badly for the pro-life movement (when courts sometimes find new abortion rights and erect new barriers to pro-life legislation). Furthermore, abortion advocates like to claim states that have regulated abortion, even when doing so was an attempt to prevent as many abortions as possible, have, by implication, repealed any pre-Roe bans. Such was the case in Texas when an appellate court then echoed that assertion. A trigger ban establishes legislative intent and resolves that question definitively. While abortion advocates decry the bans as dangerous, pro-life critics dismiss trigger bans because they do not save lives in the present. The Tennessee legislation was, interestingly enough, a top priority for Tennessee Right to Life, the National Right to Life affiliate. National Right to Life proudly reported on the passage of the bill, even as it and its affiliates previously opposed trigger bans for not saving lives now. Finally, while Texas and other states have seen great gains for life as a result of the many incremental bills, pro-life states are starting to bump up on the limits imposed by Roe, Casey and even the more recent Hellerstedt decision. It seems in many states, only small changes are left, at a time when the movement itself is becoming restless, demanding more be done to stop the killing of the innocents. In light of this, even State Catholic Conferences throughout the country have been active in support of trigger bans. [See TXCCB Director Jennifer Allmon’s testimony in support: ] Abortion bans, even ones that depend on a triggering action, continue to repudiate any legitimacy of Roe, establish legislative intent for future court challenges and further promote a culture of life. In many cases, states will find the trigger ban is the next right step as we continue to strive for the day when every child is welcomed into life and protected by law; a day that cannot come soon enough. Note: Arkansas, Louisiana, Kentucky, Mississippi, Missouri, North Dakota, South Dakota and Tennessee have passed trigger bans as of June 2019.

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