Missouri's 'trigger law' is ready for Roe's demise. What happens then?
If the U.S. Supreme Court overturns Roe v. Wade, a “trigger law” will take effect in Missouri, banning abortion in most cases.
While that idea might seem straightforward, St. Louis University law professor Marcia McCormick said its language is ambiguous and leaves room for many interpretations when it comes to other areas related to conception, such as emergency contraception.
Missouri’s trigger law is a near-complete ban on abortion, including in cases of rape and incest. The law allows for abortions only in medical emergencies that immediately threaten a pregnant person’s life or will create “irreversible physical impairment of a major bodily function.”
McCormick called that a narrow definition.
“The doctor has to do more than just believe that death is imminent, or that the serious impairment of a major bodily function is imminent,” she explained on Friday’s St. Louis on the Air. “That belief has to be reasonable so most other doctors would have to agree.”
Passed in 2019, the law would immediately go into effect if the governor or the attorney general certify that Roe has been repealed, or the state legislature passes a resolution saying so.
The law would make it a class B felony to induce an abortion, even for medical providers. That charge comes with a sentencing range of five to 15 years. The trigger law does include a stipulation that a woman pursuing an abortion cannot be charged, but McCormick questions that.
“If a woman, for example, induced an abortion herself by taking an abortion-inducing drug, it's not clear under the statute that she couldn't be prosecuted,” she said.
Birth control, fertility treatments including IVF and emergency contraception including Plan B are not mentioned in the ban. Planned Parenthood said it believes the Missouri law will not take away access to birth control. The organization tweeted Thursday: “Birth control does not meet the criteria for the definition of abortion under MO law. Since birth control prevents pregnancy (and does not end an existing pregnancy), overturning #Roe will not block access to birth control.”
But if there’s an attorney who wishes to push the boundaries of the law, McCormick said that interpretation could change.
“We have this perception about what's legal that law enforcement and prosecutors sometimes expand upon,” she said. McCormick suggested that some parts of the IVF process and emergency contraception could both come under attack due to the language in the Missouri law.
If the Supreme Court overturns Roe v. Wade, Missouri is one in a group of 13 states that have similar trigger laws and would ban abortion immediately or very quickly after a decision. The court is expected to issue a final opinion in June.
Last month on St. Louis on the Air, Diana Parker-Kafka, executive director of the Chicago-based Midwest Access Coalition, said abortion providers in Illinois can handle the demand they’re currently seeing from other states — but she sees that changing if so many states in the South and Midwest issue bans.
“We’re starting to see this shift, where people in states with abortion care have to go to another state because all of the appointments [in local clinics are booked out] for weeks in advance,” she said.
McCormick warned that states like Missouri might next turn to trying to prevent abortions that residents obtain outside its borders. Whether those efforts succeed will likely come down to the courts.
“Interstate conflicts are really going to be huge,” she said. “So to the extent that this decision is to get rid of litigation over abortion and terminations of pregnancy, it's going to have the opposite effect.”
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