Idaho, Tennessee, and Texas trigger laws protecting preborn children now in effect

Trigger laws protecting preborn human beings from abortion went into effect on Thursday in Idaho, Tennessee, and Texas. Each law was passed prior to the fall of Roe v. Wade and is now able to take effect following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization which allowed states to restrict abortion at any point during pregnancy for the first time in nearly 50 years. More than a dozen trigger laws exist around the nation.

As Melanie Israel, a policy analyst at The Heritage Foundation, told The Daily Signal in an email, “Dobbs marked the beginning of a new chapter in the fight to protect innocent human life, and the progress we’ve seen in recent months has been incredible.”

Idaho

Idaho’s trigger law protects all preborn children from abortion without exception but allows doctors who commit abortions for three distinct reasons to use those reasons as a defense in court in order to avoid penalties. Those reasons include 1) if a woman’s life is considered to be at risk, 2) if a woman has been raped and reports the rape or act of incest and then gives the report to the doctor, or 3) if a minor has been raped and reports the rape or act of incest and gives the doctor that report.

The law faced a legal challenge from the Department of Justice (DOJ), which argued that a portion of the law violated the federal Emergency Medical Treatment and Labor Act (EMTALA). The DOJ argued that the state can’t prosecute doctors who commit an abortion to save the life of the mother — and a judge agreed, blocking that portion of the law. The Department of Health and Human Services said in July, “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

However, abortion — intentionally killing a preborn child — is not the only way to end a pregnancy. Doctors can save the mother’s life by carrying out a preterm delivery or any procedure that saves the mother without intentionally killing her baby.

However, Idaho’s definition of abortion is lacking a clear difference between abortions and ethical treatments to save a mother’s life. It states, “‘Abortion’ means the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child…” Terminating a pregnancy to save a woman from an ectopic pregnancy will “with reasonable likelihood” cause the death of her preborn child, but treatment for an ectopic pregnancy should not be considered an induced abortion.

Tennessee

Tennessee’s trigger law protects all preborn children from abortion and, like the Idaho law, allows for an “affirmative defense” if a doctor commits an illegal abortion but can prove that he did so because the mother’s life was at risk or that he did what he could to protect the child’s life during an abortion for a medical emergency. Preborn children conceived as a result of rape or incest are also protected by the law, and rape cannot not be used as an affirmative defense if a doctor faces prosecution for an abortion.

There is also a section of the law that states, “Medical treatment provided to the pregnant woman by a licensed physician which results in the accidental death of or unintentional injury to or death of the unborn child shall not be a violation of this section.” Treatments to save the life of the mother, including treatment for ectopic pregnancy, preterm delivery, and emergency C-section would therefore not be considered abortions in Tenneessee.

The Daily Signal reports that “Tennessee’s ‘heartbeat’ law, which banned abortion after about six weeks of pregnancy when a baby’s heartbeat can be detected, took effect June 28. Now, life is protected even sooner, from the moment of conception in Tennessee,” adding that “Those who perform or attempt to perform an abortion are guilty of a Class C felony and could face three to 15 years in prison and up to a $10,000 fine.”

The law does not allow for a woman who obtains an abortion to be prosecuted.

Texas

According to NBCDFW.com, “With Texas’ trigger law in effect as of Thursday, performing an abortion in the state is now a felony punishable by up to life in prison.” The outlet added that “Rape and incest are not considered exceptions” under Texas’s trigger law protecting preborn children, and that under the law, “the Texas attorney general is permitted to seek a civil penalty for at least $100,000 against someone who violates the statute,” NBC noted.

Texas defines an abortion as “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives.” (emphasis added)  If the act is carried out to “save the life or preserve the health of an unborn child,” to “remove a dead, unborn child who death was caused by” miscarriage, or to “remove an ectopic pregnancy” it is not considered an abortion.

The law also states, “Medical treatment provided to the pregnant female by a licensed physician that results in the accidental or unintentional injury or death of the unborn child does not constitute a violation of this section.” This means, for example, that cancer treatments for the mother that accidently caused her baby’s death would not be considered a crime.

An email from the Charlotte Lozier Institute noted that yesterday, White House Press Secretary Karine Jean-Pierre erroneously stated that Texas’s law will “block medical providers from providing life-saving and health-preserving care” and that “women may die as a result.” The Lozier Institute’s Dr. Ingrid Skop, a board-certified OB/GYN who has practiced in Texas for more than 25 years, noted that it is rhetoric like this that is actually risking women’s lives, not the law itself:

Nothing in the new Texas pro-life law is in conflict with standard medical guidance, nor does it prevent me from providing the same care I have always provided women facing potentially life-threatening complications….

The law is quite clear.  An exception is allowed based on a doctor’s reasonable medical judgment for a life-threatening complication.  Guidance from professional medical societies providing specific recommendations for treating both common and uncommon pregnancy complications are also quite clear.  But the steady drumbeat of misinformation from the White House, media pundits, pro-choice medical organizations and pro-abortion activists is muddying the waters, and that has put the lives of women at risk.

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