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Trigger laws in now 14 states place further restrictions and punishments on abortion

ARI SHAPIRO, HOST:

Today trigger laws will tighten abortion restrictions in three states that already have abortion bans in place. Tennessee and Idaho will move from banning the procedure after about six weeks to near-total prohibitions. Texas will make it a felony to provide or attempt to provide an abortion with a possible punishment of life in prison. In all, at least 14 states now have severe restrictions on abortion. UC Davis law professor Mary Ziegler is here to help us understand this patchwork of restrictions. Thanks for joining us again.

MARY ZIEGLER: Thanks for having me.

SHAPIRO: All right. As we mentioned, these three states already had some kind of abortion ban in place, and now these trigger laws are going to add to those restrictions. So how much is this practically going to change things for people who might want to end a pregnancy in Tennessee, Idaho and Texas?

ZIEGLER: Well, in a big-picture sense, there's already virtually very little access to abortion in these states. On the other hand, there have been clinics that have been open that will close. And many of these laws actually are more restrictive in the sense that they either impose earlier gestational bans or they enhance criminal and civil penalties, which will have some kind of effect on some people seeking abortion early in pregnancy, and it'll also have an effect on doctors performing emergency care that's sort of adjacent to abortion who may be more affected or at least more concerned about these enhanced penalties that some of the trigger laws prescribe.

SHAPIRO: In Texas, the advanced penalties include life in prison and a $100,000 fine. How out of step with the rest of the country is that, or is that pretty consistent with what we're seeing in other states?

ZIEGLER: Well, we've seen the country, I think, kind of roughly divided in the sense that there are a number of states - roughly half - that have some kind of ban that's kicking in and the rest of the country that either has later gestational limits in places, for example, like Florida, or places that are actually moving in the other direction and guaranteeing access to abortion or protecting providers and others from criminal or civil consequences from out of state. So I think this is a situation where the country is sort of dividing into conventional kind of blue and red pockets on the one hand. But then when you look deeper at what actually voters seem to prefer, the picture is much more complicated, and you see a lot of states that fall somewhere in the middle, where voters would probably prefer something very different from the kind of bans we're seeing.

SHAPIRO: Do these new restrictions in Tennessee, Idaho and Texas have exceptions to save the life of the mother or in cases of rape or incest?

ZIEGLER: The Texas law prohibits abortion except in life-threatening - well, it essentially has exceptions for life and severe health conditions. Tennessee's is similar, other than it kind of is unusual in the sense that it actually forces a doctor who's being prosecuted for abortion to prove that an abortion was lifesaving. Idaho's law also lacks exceptions, and it's worth emphasizing that the - other than this kind of life exception that's extremely narrow and being challenged by the Biden administration - and the Idaho GOP, going forward, has staked out the position that there should be no exceptions whatsoever. But that's not what we're seeing in the current trigger law.

SHAPIRO: We've also seen some movement in the opposite direction. Voters in Kansas earlier this month defeated a ballot measure that would have stripped abortion protections from the Constitution. In Nebraska, abortion rights opponents did not have enough votes to pass a ban. How do you put those moves into context with the states we've been talking about that are ratcheting up penalties and restrictions?

ZIEGLER: Well, I think there is sometimes a disconnect between partisan politics and how voters feel directly about abortion. We don't have perfect polling on this, but the best polling we have, according to The New York Times' Upshot, would suggest that maybe in about 16 states, a majority of voters would actually want something like a ban on abortion, including many of the ones that are putting bans into effect at the moment, including, for example, Tennessee.

But in other states, it's simply seems to be the case that voters have stronger preferences for Republican lawmakers than they have antipathy to abortion bans. But that means, one, that when you go directly to voters, you may get a different answer, as we saw in Kansas and, two, that there are Republicans in some states who have some trepidation about bans when they know that voters in their states might not want them, which is what I think you see in Nebraska. By contrast, in some of these states with trigger laws, Republicans there, I think, are secure enough in the partisan lean of their states that they don't think they're going to pay a price, even in some cases where voters may not actually prefer a ban, all things being equal.

SHAPIRO: Since the Supreme Court struck down Roe v. Wade in the Dobbs decision, we have seen a series of states with trigger laws take effect, overcome court challenges. Are we pretty much at the end of the line now? Is that most of them?

ZIEGLER: That is most of them. We're waiting, again, to see how Idaho's medical emergency exception will come into play - if the courts are going to side with the Biden administration and say that it's too narrow. And of course, it's worth emphasizing that, you know, trigger laws aren't the end of the road here. Some states are in special session on abortion. Other states are poised to address abortion when they resume regular legislative seasons and are considering a broad array of other measures, including things addressing interstate travel, abortion medication. So trigger laws are really just the first wave of what we're likely to see, not the end.

SHAPIRO: That's Mary Ziegler, Martin Luther King professor of law at UC Davis. Thank you very much.

ZIEGLER: Thanks for having me. Transcript provided by NPR, Copyright NPR.

Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.
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Christopher Intagliata
Christopher Intagliata is an editor at All Things Considered, where he writes news and edits interviews with politicians, musicians, restaurant owners, scientists and many of the other voices heard on the air.
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