Elizabeth Warren spoke outside of the court as protesters gathered after a leaked draft opinion of the Supreme Court said that it would overturn the abortion law. Planning for what comes next did not extend from that work. An Insider investigation has found that 13 states are unprepared for how to implement a ban on abortion. Trigger laws are on the books in Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, Utah, Texas, Oklahoma, and Wyoming. Some have been in place for 17 years or more. Insider reached out to nearly 80 state and local officials and only one state agency could provide any written plans about how it will roll back a civil right that has existed for nearly half a century. Insider asked for information from the governor's offices, mayor's offices, state attorney generals, district attorneys, state legislative offices, and health departments. Many of the states have potentially complicated bans that include exemptions for cases of rape, incest, or health of the pregnant person, each of which would require fine-grained judgments by police, prosecutors, health care providers, and other officials involved in decisions about how to proceed. None of the states could give guidance to officials who will make those decisions. The Supreme Court agreed to hear the case last May and abortion providers and reproductive rights advocates have been bracing for it. The main focus is on a Mississippi law that prohibits abortion after 15 weeks of pregnancy, a challenge to the standard set by the Supreme Court's landmark abortion decision. The leaked draft opinion was published on Monday. Legal experts told Insider that there will be a lot of confusion and uncertainty over what abortion care will look like when the 13 trigger laws take effect. The chilling effect is going to be the same regardless because prosecutors can change over time. Jessica Arons, senior advocacy and policy counsel for reproductive freedom at the American Civil Liberties Union, said that even if one declines to prosecute or enforce, the next one could. Even in places where the procedure is still legal, the experts said, it will be hard to get an abortion. The chaos and confusion that people are experiencing right now in this moment, even prior to a final decision being handed down, is exactly what we anticipate seeing when the final decision is rendered. She said that the confusion is part and parcel of the project of making abortion accessible. An Insider review of the language in the 13 trigger laws shows that there will be confusion. If a person is pregnant as a result of rape or incest, there are exemptions in four states. The rape must be reported to law enforcement in Idaho, Mississippi, and Utah if you want to get an abortion. Incest reporting is required in Idaho and Utah. Insider found that state agencies couldn't provide guidelines for rape and incest victims or for the doctors and nurses who will treat them. None of the state attorneys general or county district attorneys that Insider contacted could answer detailed questions about whether they have a plan, or even convened planning meetings, concerning protocols for law enforcement, child welfare officials, and health providers when these incidents arise. According to a 2020 Department of Justice survey, more than two thirds of rapes go unreported. Laws in 12 states allow for exemptions to protect the life of the pregnant woman in medical emergencies. Idaho, Tennessee, Texas, and Wyoming exclude life-threatening risks with a mental, psychological, or emotional cause. No state agency contacted by Insider could come up with protocols for how a life-threatening risk to the pregnant patient would be defined. Guidance on what physicians will be expected to do when faced with life or death situations was not produced by the agencies. In Oklahoma, where the law contains no exemptions at all, no agencies provided guidance for doctors who will have to face the prospect of letting a pregnant patient die when an abortion might save their life. Legal experts said that there are other scenarios that point to the complexity of enforcement. People who had abortions were sometimes forced to testify about who performed their procedure and faced contempt charges if they refused. Carol Sanger, a law professor at Columbia University, said that law enforcement investigations could conflict with federal privacy law. It is one thing to introduce and pass unconstitutional laws that your state won't be allowed to enforce. The director of state policy and advocacy at the Center for Reproductive Rights told Insider that you can advocate for them, pass them, make lots of statements, and potentially win you attention and votes. Insider sent 116 public records requests to state and local agencies over the course of two months. More than a dozen agencies denied the request because they had no responsive records. The agencies didn't give records by publication time. 13 agencies responded to Insider's request with records. The Texas Department of Health and Human Services was the only one that responded. Updating medical licensing rules, producing provider guidance, and training licensing staff are some of the things the department has to complete.
The complexities of enforcing of 'draconian laws'
'It makes no sense to do anything'
There are pro-choice activists at the state capitol. Gov. Greg Abbott signed atrigger law in June of 2021. The photo was taken by Robert Daemmrich Photography Inc.
When asked if they had any plans for the law going into effect, 24 state, county, and city agencies said no. Dozens of agencies did not respond to Insider queries.
In a March phone call, the department attorney for the Arkansas Department of Health said that it makes no sense to do anything, think about anything, implement anything, or plan to implement anything.
A department spokesman said in late April that the agency will not be involved in planning or implementing the law until it comes into effect.
There has been no discussion within the city government about preparing for the state law to go into effect. The Wyoming Department of Health responded to all of Insider's questions about whether the department has made any plans, produced any documents, or had any discussions about how to implement the state's trigger law.
She said that the statute would make abortion illegal in Wyoming.
The district attorney for Oklahoma told Insider that her office does not deal in hypothetical situations. Any statement on unknown variables is irresponsible and political posturing.
Most agencies did not reply to Insider's requests for comment. The departments of health of Idaho, North Dakota, Mississippi, and Wyoming are not involved with enforcement. The Mississippi State Department of Health will be prepared to move forward when a decision is made.
Insider has learned that the local government of Kansas City, Missouri, which straddles the state's border with Kansas, claimed that there would be no additional labor by public employees. The fiscal impact of Missouri's trigger law on the city was not possible because pregnant women can cross state lines and get abortion services on the Kansas side, according to a June 2019 document provided by the city.
Several state legislatures required fiscal impact statements when considering their trigger bans, and a few states decided that the laws would incur no costs.
The executive director of Students for Life said his group worked for both Texas and Wyoming to have their laws changed. He told Insider that the organization has not weighed in on how the states should implement their new laws.
The AGs had not been given specific advice, and the biggest thing for us was to make sure that they would enforce the law.
More than 250 counties in Texas are in the law. There are indications that district attorneys in some states will approach abortion laws differently. The office of Idaho's Attorney General does not have the authority to enforce the state's abortion ban. He said that the authority lies with Idaho's 44 counties.
Insider spoke to some district attorneys who said they would enforce the law. In Idaho, Twin Falls County prosecuting attorney Grant Loebs said if a law enforcement agency referred an illegal abortion to his office, his next step would be to file charges.
We would have to look at that independently and say, "Oh wow, looks like you have expert medical testimony that this would have caused the danger to the life of the mother, and we might agree and dismiss the case." Or his office could disagree with the health care provider and decide that this is just an excuse you're making up after the fact.
We don't have the resources to put a doctor on staff to second guess a doctor's decision.
The district attorney wouldn't enforce the state's abortion ban. AP Photo/Mark Humphrey
The attorney general of the 20th judicial district in Nashville has staked out a different approach. In September 2020, he declined to defend another Tennessee anti-abortion law and received a backlash from the state's Republican governor. He told Insider that he stood by his declaration that criminal law should not be used to control a woman&s body.
As long as I am the elected District Attorney for the 20th Judicial District, I will not prosecute any woman who chooses to have a medical procedure to end a pregnancy or any medical doctor who performs this procedure at the request of their patient.
Megan Ellyia Green said her strategy is to encourage local prosecutors not to enforce the statewide ban.
Even if it becomes criminalized, prosecutorial discretion still exists and how do we put pressure on prosecutors to not prosecute people? Green told Insider.
When asked if he had any plans to enforce the law, Bell said that he did not have any.
There are states governed by pro-choice mayors that may have other forms of resistance from Democratic cities. The news from the Supreme Court is very concerning to the mayor of Idaho. Lauren McLean said that no one should have to flee their state to access safe abortion care. I remain steadfast in my support for all people who need access to abortion care and stand with them in fighting for privacy in health care decisions.
Several emails from the city government of Houston, obtained via public record request, illustrate frustration and disgust with state abortion laws.
Houston's director of government relations wrote in an email to coworkers that as long as the law is still in place, it is crazy.
State and local governments have not prepared for the laws to take effect. The director of the only abortion clinic in North Dakota told Insider that the clinic has been preparing contingency plans since the Supreme Court agreed to hear the case.
The clinic is considering moving to northwest Minnesota, which is a short drive from its current location in Fargo. The clinic may challenge the state in court if the attorney general misinterprets the Supreme Court decision.
We have never considered closing down completely. I can not imagine closing our doors and saying, "Okay, patients we've been serving for the past 24 years, you're on your own." Minneapolis is the next closest provider.
Minneapolis is close to Fargo. Patients from North and South Dakota and parts of Minnesota have to drive three to five hours to get to Fargo.
Bonyen Lee-Gilmore, vice president of strategy and communications for the St. Louis Region and Southwest Missouri, pointed out that abortion is extremely difficult to obtain in the state due to a number of previous anti-abortion measures. She said that only a dozen patients a month access abortion services at the last clinic in St. Louis.
There is a call center at the Regional Logistics Center. Four full-time case managers ensure that patients from Missouri, Texas, Kentucky, Louisiana, and beyond are able to access abortion care. Neeta Satam is the photographer for The Washington Post.
100% of the costs of travel and lodging are being absorbed by us. We connect patients with abortion funds from all 50 states, depending on what they need and who they qualify for. Lee-Gilmore said that they wouldn&t be deterred from doing the work.
She has yet to hear from the state of Missouri or any of its agencies about how they plan to enforce the state's law, which takes effect immediately after the court overturns the abortion law.
Matt Drange, Esther Kaplan, and Oma Seddiq were involved in the reporting.
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