Analysis Law and Policy

‘Heartbeat’ Bans: How We Got Here, and Where We’re Headed

Imani Gandy & Brie Shea

Lawmakers in at least three states have already pre-filed "heartbeat" abortion bans. Will this unconstitutional abortion ban be the anti-choice movement's full-frontal attack on abortion rights in 2019?

On December 21, Ohio Gov. John Kasich vetoed the legislature’s attempt to become the fourth state to pass a law that bans abortion as soon as a fetal heartbeat can be detected. But that doesn’t mean we’re out of the woods—it wasn’t the state’s first try at passing such an extreme abortion restriction, and it won’t be the last. Here at Team Legal, we thought it would be a good idea to provide an overview of what these bans are, whether they’re constitutional, and why anti-choicers are so excited about them.

So what are these bans? The short answer is that they’re bullshit. The long answer is that they are bills that attempt to outlaw abortions as soon as a heartbeat can be detected.

You may be asking: When can a heartbeat be detected?

Aye. There’s the rub. That depends on how strict the heartbeat ban is. Some heartbeat ban bills—like the one Arkansas passed in 2013, and the one the Ohio legislature passed—require fetal heartbeat detection by way of abdominal ultrasound, which generally cannot detect fetal heartbeat until somewhere between nine and 12 weeks.

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But the most strict heartbeat bans require that a pregnant person be subjected to a transvaginal ultrasound so that a fetal heartbeat can be detected. This can happen as early as six weeks’ gestation—before many people even know that they’re pregnant.

To put it in laypeople’s terms, if your period is two weeks late, you might think to yourself, “Huh. That’s strange.” You might go to the store, buy a pregnancy test, take the pregnancy test, freak out that it’s positive, make an appointment with a doctor to verify the results and talk about next steps. By the time that all takes place, you would be timed out of getting an abortion, should you choose to get one, because your six weeks would already be up. It is, effectively, a total abortion ban—because you’re either timed out from the get-go or by the time you meet all the other state restrictions, which can include 72-hour mandatory waiting periods, then you’re timed out.

Regardless of the specific timing of the bans, the legal difference is irrelevant. Heartbeat bans are pre-viability abortion bans and, as such, are unconstitutional.

The U.S. Supreme Court, in Roe v. Wade, made it clear that states may not ban abortion outright before the fetus is determined to be viable, recognized by the medical community as around 24 weeks’ gestation. There’s no universe in which a six-week or even 12-week pregnancy is viable. In addition, the Court ruled in Planned Parenthood v. Casey that states may not place an undue burden on a person’s right to choose an abortion.  These bans would qualify as a burden. Obviously.

But states like South Carolina, Missouri, and Kentucky have already pre-filed their 2019 heartbeat ban bills even though no federal court in the country has upheld a heartbeat ban, including North Dakota’s and in Arkansas. Iowa passed a heartbeat ban last year. It, too, was struck down by a state court in Iowa. As the timeline below shows, that hasn’t deterred the anti-choice forces in these states who seem to welcome the challenge.

Why would they continuously file unconstitutional bills then? To provide the Supreme Court as many opportunities as possible to reverse course on abortion rights. After all, Janet Porter, the head of the anti-choice extremist group Faith2Action, the architect of the Ohio bill, and a woman deemed too extreme for Christian talk radio, recently said that it won’t be long before the Supreme Court welcomes the legislation with open arms, according to a Newsweek report. And with Christian evangelical legal advocacy groups like Liberty Counsel offering to defend the Ohio law, more states may be emboldened to enact unconstitutional abortion bans if they don’t have to rely on taxpayer dollars to fund them.

So will we see one of these effective abortion bans making its way to the nation’s highest court, or to Congress? Only time will tell.

 

 

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