Fetal heartbeat bill

A fetal heartbeat bill is a form of proposed anti-abortion legislation based on the notion that a fetus is a person as soon as it has a heartbeat. Fetal heartbeats can be detected at about six to seven weeks into the pregnancy,^{[nb 1]}but may be as late as twelve weeks when detected with a Doppler fetal monitor.^[3]

Fetal heartbeat bills by state

Arkansas

A fetal heartbeat bill, banning abortion after twelve weeks, was passed on January 31, 2013 by the Arkansas Senate,^[4] vetoed in Arkansas by Governor Mike Beebe, but, on March 6, 2013, his veto was overridden by the Arkansas House of Representatives.^[5] A federal judge issued a temporary injunction against the Arkansas law in May, 2013. ^[6]

Kansas

The bill was introduced and referred to committee in February 2013. The bill was presented to the Kansas house in March 2013.^[7] The bill is known as House Bill 2324, "An act prohibiting an abortion of an unborn human individual with a detectable fetal heartbeat." ^[8] One outspoken advocate of such bills is Mark Gietzen, who has tried to gather as many signatures as possible in order to get Sam Brownback to convene a special session of Congress in order to consider the bill.^[9] Gietzen has also advocated for a fetal heartbeat law to be passed during a special session of the Kansas legislature, to be held on September 3, 2013.^[10]

Kentucky

The Kentucky heartbeat bill, HB 132, was introduced in 2011, and, as of February 2, 2013 was postponed in committee.^[11]

Mississippi

The Mississippi bill, HB 6, was introduced in January and died in committee in February 2013.^[12]

North Dakota

Furthermore, Bette Grande has advocated for this type of legislation in North Dakota;^[13] one of these bills was blocked from taking effect on July 22, 2013 by Daniel L. Hovland, a US District judge in Bismarck.^[14] When the bill, HB 1456, was signed into law by Jack Dalrymple, he stated that it was “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade." In June of that year, a lawsuit had been filed with regard to the law by the Center for Reproductive Rights (CRR), on behalf of the only abortion clinic in North Dakota, Red River Women's Clinic.

Ohio

In Ohio, a fetal heartbeat law, HB 125, was introduced in the state legislature in October 2011.^[15] The bill was shelved by the Republican majority Senate to avoid controversy.^[16] This bill was notably supported by Jack Willke.^[17] A related law was recently signed in Ohio by John Kasich, which mandates, among other things, that doctors who do not test for a fetal heartbeat must be subject to criminal penalties; specifically, "The doctor’s failure to do so would be a first-degree misdemeanor, carrying up to six months in jail, for the first violation and a fourth-degree felony, carrying up to 18 months in jail, for subsequent violations."^[18] A further fetal heartbeat law was introduced on August 14, 2013, by Lynn Wachtmann and others.^[19]

A bill similar to the 2011-2012 bill was introduced in 2013, titled HB 248.^[20]

Texas

A fetal heartbeat bill was introduced in Texas by Phil King on July 18, 2013, in the wake of Rick Perry signing Texas Senate Bill 5 into law.^[21]

Wyoming

A fetal heartbeat bill, HB 97, was introduced in Wyoming in January 2013by Kendell Kroeker, a member of the Wyoming House of Representatives; however, in February 2013 the bill was struck down by a house committee in a 4-5 vote.^[22][23]

Fetal heartbeat legislation in Ireland

In Ireland, abortion was made illegal in 1861 and has been ever since, as a result of the Offences Against the Person Act 1861, and in 1983 Ireland passed the Eighth Amendment of the Constitution of Ireland, which not only gave unborn fetuses the right to life but also prevented the future legalization of abortion. This law became controversial on a number of occasions:

• First, in Attorney General v. X, "X", the alias of a 14-year-old girl who had become pregnant from rape sought to have an abortion in England since it was, as mentioned above, impossible for her to obtain one in her native country. However, Harry Whelehan tried to prevent her from having this abortion by seeking an injunction. This injunction was later overturned by four out of five judges in the Irish Supreme Court--the majority opinion (Finlay C.J., McCarthy, Egan and O'Flaherty J.J.) held that a woman had a right to an abortion under Article 40.3.3 if there was "a real and substantial risk" to her life.
• Second, the Death of Savita Halappanavar on October 28, 2012 as the result of a bill preventing an abortion from being performed if a fetal heartbeat could be detected, even though her fetus was not viable, sparked calls from many people to relax Ireland's abortion laws, a request that was granted on July 30, 2013, when President Michael D. Higgins signed the Protection of Life During Pregnancy Act 2013 into law.

"Informed consent" laws

A related though distinct type of law is that introduced at the state level in all 50 states in the US in October 2011, which would require any woman seeking an abortion to see and hear their fetus's heartbeat. Supporters included the United States Conference of Catholic Bishops, Americans United for Life, and the Susan B. Anthony List.^[17] Another such bill was introduced in Texas, and, after getting approved by an appeals court, was criticized by Sam Sparks, who said, “The concept that the government may make puppets out of doctors, provided it does not step on their patients’ rights, is not one this Court believes is consistent with the Constitution, in the abortion context or otherwise.”^[24] A similar type of legislation, the "Heartbeat Informed Consent Act", was introduced at the national level around the same time by Michele Bachmann, however, it died in committee.^[25] Another law of this variety, introduced by Sharon Weston Broome, was passed by legislators in Louisiana in 2012, as an amendment to a 2010 bill requiring women seeking an abortion to receive an ultrasound of their fetus.^[26] Similar laws have been passed in states such as Georgia in 2005;^[27] and a law that mandated both an ultrasound of the fetus and listening to its heartbeat before an abortion could be procured was laid on the table in 2012 in Pennsylvania.^[28] This last bill became controversial when Tom Corbett, Pennsylvania's governor, stated that "You just have to close your eyes" and dismissed accusations that the bill would be unnecessarily obtrusive.^[29]

Controversy

There exists some controversy surrounding fetal heartbeat laws because no one is exactly sure when the earliest point is at which a fetus's heartbeat can be detected; when the Wyoming state legislature was debating the bill mentioned above, Norine Kasperik "noted that during the discussion, she heard different answers to when a heartbeat is detectable. To her, there seemed to be variation by medical equipment used." Similarly, Mary Throne inquired, “Is this abortion illegal at 22 days with a highly invasive ultrasound or is it illegal at 9 weeks when we hear a heartbeat with a stethoscope?”^[22] Furthermore, some critics of these bills have claimed that they ignore that not all fetuses' heartbeats become detectable at the same time, even when measured using the same methods, since, according to Mother Jones, this varies depending on "the embryo's position in the uterus, a woman's body fat percentage, and a dozen other variables."^[30] On a similar note, the Center for Reproductive Rights has stated that there is some inconsistency with regard to these laws; specifically, "The Arkansas law requires providers to do so with an abdominal ultrasound, and the North Dakota one by any technology available, including a transvaginal probe, which can detect a heartbeat weeks earlier than an abdominal ultrasound."^[31] With specific regard to the North Dakota law, detecting a fetus' heartbeat at six weeks into a pregnancy requires the use of a transvaginal ultrasound, which some members of the pro-choice movement say is unnecessarily invasive.^[32] Furthermore, while the pro-life movement claims that bills mandating a woman listen to her fetus' heartbeat would increase the likelihood of them changing their mind, the pro-choice community, with the support of the Pennsylvania Medical Society, opposes "informed-consent" bills because they threaten to, if passed, "significantly jeopardize the open dialogue within the physician-patient relationship."^[33] Furthermore, some critics of fetal heartbeat bills say that, since Roe v. Wade established that abortion is legal until the point of viability (between 24 and 28 weeks into the pregnancy), that such bills "blatantly contradict" Supreme Court precedent. As Gov. Beebe put it regarding the Arkansas 12-week ban mentioned above, "In short, because it would impose a ban on a woman's right to choose an elective, nontherapeutic abortion well before viability, Senate Bill 134 blatantly contradicts the United States Constitution, as interpreted by the Supreme Court...When I was sworn in as governor I took an oath to preserve, protect, and defend both the Arkansas Constitution and the Constitution of the United States. I take that oath seriously."^[5] That fetal heartbeat bills are unconstitutional is an opinion with which Judge Hovland agreed with regard to the North Dakota law signed by the governor on March 26, 2013. Hovland wrote that the law was “clearly invalid and unconstitutional based on the United States Supreme Court precedent in Roe V. Wade."^[34]

Legal challenges

"Informed consent" laws requiring women seeking abortions to have the physician play a recording of her fetus' heartbeat have met with challenges in court, notably in Texas, when the CRR filed a lawsuit against it, leading to a court case entitled Texas Medical Providers Performing Abortion Services v. Lakey. Prior to Sam Sparks condemning the law in January 2012, however, a federal district court had ruled that the law violated the First Amendment in August 2011. This decision was reversed by the United States Court of Appeals for the Fifth Circuit, led by Edith Jones. Another similar law was challenged in North Carolina in Stuart v. Huff, in which a federal district court ruled that the law was in violation of the First Amendment. This case, unlike the one in Texas, has not yet been appealed.^[35] This has led to some debate among different pro-life/anti-abortion groups regarding strategy; specifically, while some of these groups, like the Kansas Coalition for Life, have supported the passing of this legislation, others, like Kansans for Life, are concerned that "enacting a fetal heartbeat ban would prompt a court ruling undoing some limits on abortion and providers."^[36] Likewise, Paul Linton, former general counselor for AUL, has argued that fetal heartbeat laws "have no chance in the courts." He, like most mainstream anti-abortion advocates (including James Bopp), prefers instead a legislative strategy that chips away at Roe v. Wade.^[31]

Notes

References