The U.S. Supreme Court on July 26 issued its judgment in the case of Dobbs v. Jackson Women’s Health, officially setting in motion abortion bans in at least four states.
A “judgment” is distinct from the opinion and typically follows issuance of the opinion by about a month. This certified document from the clerk of The Supreme Court is usually simply a formality to allow the Court of Appeals from which the case originated to either close its docket or begin the process of implementing what was ordered on remand.
In the Dobbs case, the Supreme Court issued its opinion (142 S. Ct. 2228) on June 28, but the judgment issued from the clerk’s office to the Fifth Circuit about 30 days later.
Because of the way the trigger bans in at least four states were worded, the issuance of the judgment on July 26 also started the clock on the enforcement of those states’ laws. The trigger laws in Texas, Tennessee, Idaho, and North Dakota will each take effect 30 days after the judgment was issued, i.e., on August 25, 2022.
The Texas Human Life Protection Act was enacted in 2021 and bans abortion procedures at all stages of pregnancy with exceptions to prevent death or major bodily injury to the woman, to save the life of the unborn child, and for ectopic pregnancies.
The statute takes effect on the thirtieth day after the judgment from the Supreme Court being issued, so it will now become effective August 25, absent additional litigation or legislation. The Texas Attorney General issued guidance on July 27 reaffirming that effective date and pledging his office’s support to local prosecutors in enforcing the law.
Additionally, the Attorney General asserted in the same guidance that the state’s pre-Roe abortion ban, the one that was specifically struck down by The Supreme Court in its 1973 Roe v. Wade opinion, remained on the books and is presently enforceable by local prosecutors as they wait for the August 25 effective date of the trigger ban. However, a state supreme court order permits only civil enforcement of that 1925 abortion ban while the court reviews a challenge to whether later statutory enactments impliedly repealed the old law.
The Tennessee Human Life Protection Act was passed in 2019. It also bars abortion at any stage of pregnancy. However, unlike the Texas law, it does not provide exceptions for abortion related services provided to save the life of the pregnant patient. Instead, it provides an affirmative defense to doctors that they can use to defend against prosecutions. The difference is that the doctor bears the burden to prove in court after criminal charges have been filed that her actions to abort the fetus were done in an effort to save the life of the pregnant patient.
Like the Texas law, the Tennessee law takes effect 30 days after the judgment has issued. The Tennessee Attorney General has issued a notification to the Tennessee Code Commission identifying August 25 as the effective date for the law.
The Idaho trigger ban was passed in 2020. It is similar to the Tennessee law in that it provides affirmative defenses to charged physicians instead of exceptions to the definition of abortion. Like Texas and Tennessee, the Idaho law specified 30 days from the issuance of judgment as the effective date for the law. Again, that means that the law is scheduled to take effect August 25.
However, Idaho has an additional wrinkle to it. There is another abortion restriction passed in 2021 that criminalizes abortions after the detection of a fetal heartbeat. This statute includes a trigger that cues from any Federal appellate court’s judgment upholding a similar heartbeat restriction. There is an interpretation that this latest statute could be effective earlier than the 2020 ban, based on the 11th Circuit’s finding in Sistersong Women of Color Reproductive Justice Collective v. Governor of the State of Georgia, No. 20-13024 (11th Cir. July 20, 2022) (published). As a result, abortion could be criminalized in Idaho as soon as August 19.
In the meantime, the state supreme court has scheduled a hearing for August 3 to determine whether an injunction should issue that would prevent the state from enforcing the 2020 trigger ban while it considered challenges to the law that were brought by Planned Parenthood of Idaho. At present, the third challenge by Planned Parenthood over the six week ban set to go into effect potentially as early as August 19 has not yet been included in that hearing date, though Planned Parenthood has requested it be added in a third legal challenge this week.
North Dakota passed a trigger law in 2007 that focused on the reversal of Roe as the triggering event. However, in 2019 the legislature amended that provision to make the law effective 30 days after the Attorney General certifies that the Supreme Court has issued a judgment overturning Roe. The North Dakota Attorney General certified that the judgment had issued on June 28, four days after the Supreme Court issued its opinion in Dobbs. As a result, he asserted, the trigger law would take effect on July 27. However, a state court blocked enforcement of the law on a temporary basis while it considered a challenge to the law. In its ruling, the court determined that the Attorney General acted prematurely and failed to follow the provisions of the law, which required certification that the judgment, not the opinion, issued.
In response, the Attorney General certified on July 27 that the judgment had, in fact, issued, making the effective date for the law August 25, unless further state court action intervenes
Unlike the states discussed above, Wyoming’s trigger law was not dependent upon the issuance of the judgment in Dobbs, yet it nonetheless only recently became effective. In March, Wyoming passed a complete ban on abortion with exceptions for actions to save the life of a pregnant patient. The law required that within 30 days of the Supreme Court’s decision overturning Roe, the Attorney General must report to the Governor, who would then, if appropriate, certify that Roe has been overturned and the abortion ban would be effective.
The Attorney General and Governor each completed their necessary actions last week, and the new Wyoming law was scheduled to take effect on July 27. However, a state court judge issued a temporary restraining order blocking enforcement of the law as she considers a lawsuit that claims the law violates a state constitutional provision that protects individuals’ rights to make their own healthcare choices.
Legislative Special Sessions
Two states have recently convened special sessions of their legislatures to implement new abortion laws as a result of the Dobbs decision.
Indiana has a proposed ban on abortion that passed the state senate late in the evening on July 28. The bill now moves to the house and then, if approved in identical fashion, on to the governor for signature. If passed in its current form, the majority of provisions in the law would take effect on Sept. 1, 2022, with only the creation of a statewide maternal mortality review commission waiting until July 2023 to take effect.
West Virginia, meanwhile, has passed a complete abortion ban through the house of delegates, which at the same time repeals its pre-Roe statutes that had been challenged in court. The state senate passed a version of the bill, but amended it to remove the criminal penalties. As that was a major change from the version that passed the house, it has been sent back to that body for reconsideration. The West Virginia law would take effect mostly upon passage, with the penalty provisions having an effective date of 90 days after passage.
Reed Smith will continue to track developments on state abortion laws. For further information, please visit our Reproductive Health Working Group and Resource Center or reach out to the health care attorneys at Reed Smith.