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Wednesday, October 28, 2020

Zombie laws and trigger laws

The other day I discussed zombie laws--laws that remain on the books and are enforceable by a departmentalist executive, but any effort to enforce would fail in court--and wished I had thought of the term. What is the opposite of a zombie law? Trigger laws--laws that are on the books but are presently unenforceable by their terms, but become enforceable upon some triggering event.

With a definite 5-4 (if not 6-3) SCOTUS majority in place to overrule Whole Women's Health, if not Roe and Casey, the statutory landscape of abortion illustrates the various forms this can take. According to a report from the Guttmacher Institute and translated into this terminology:

   • Nine states have pre-Roe zombie laws--pre-Roe abortion restrictions that cannot be successfully enforced--and no intent and/or effort to enforce them. You might try to guess from the list of states which ones are not enforcing because they do not want to* and those not enforcing because they know they will lose when it reaches court.

[*] New York had one such law that it repealed in 2019.

    • Ten states have post-Roe trigger laws that ban all or most abortions and become effective on the triggering event of an overruling of Roe/Casey and the allowance of complete regulation of abortion.

    • Nine states have post-Roe zombie laws--post-Roe restrictions that they intended or attempted to enforce but were enjoined. These states will ask the court to dissolve the injunction, citing the overruling of Roe/Casey as the change in legal landscape making the injunction improper. Once the injunction is lifted, the laws are enforceable.

    • Three states have nothing on the books, but have expressed intent to enact new post-overruling laws to restrict abortion to the extent permissible.

    • Fourteen states have complete statutory protection for abortion, either throughout pregnancy or pre-viability. These laws match or exceed current constitutional protection.

Posted by Howard Wasserman on October 28, 2020 at 04:12 PM | Permalink


sovereigns can structure their debt relief operations to affect triggers and payouts on CDS.

Posted by: Steven | Nov 4, 2020 9:36:00 AM

New York had one such law that it repealed in 2019

Posted by: run 3 | Nov 2, 2020 4:00:12 AM

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