Bioethics in Law & Culture Fall 2021 vol. 4 issue 4
Title: A Heartbeat Away
Author: Janet Porter
Publisher: Destiny Image Publishers, Inc.
Reviewed by: Joe Kral, MA
For a decade now, Fetal Heartbeat bills have become quite popular among the various pro-life public policy organizations. It has become clear that the viability standard is much too problematic given the modern science and that a harder line needs to be set. It is within this framework that we begin to see a rise in Fetal Heartbeat Legislation.
Part One: Her Critique of Pro-Life Incrementalism:
In her book, Janet Porter, the architect of the Fetal Heartbeat Bill, describes her journey to create this groundbreaking legislation. From the initial seminal thought in 1990 as a young lobbyist to the final realization of it in 2010 as a more mature pro-life advocate. In this discussion, the book truly begins with her philosophical thoughts on the need for Fetal Heartbeat legislation, but on the pro-life movement as a whole. In this first part of the book, it becomes clear that Mrs. Porter disavows the pro-life incrementalist strategy as a whole. But it certainly seems to me that she simply does not understand the philosophy, or the morality, behind incrementalism.
Firstly, it seems clear, specifically in chapter one, when she speaks of incrementalism as "regulating" abortion. This is simply not the end goal of incrementalism at all. Pro-Life incrementalists are working to end abortion, but the goal with pro-life legislation is not only to limit the harm of the existing evil of abortion-on-demand that exists but also to help teach the value of life through passing pro-life laws. In essence, it is to help set up legal and cultural conditions to help build a Culture of Life. Now, while I do not expect every pro-life professional (current or former) to explain this with absolute philosophical and theological precision, I do expect that they at least understand the basic rudiments of the principle they are working to establish. Mrs. Porter does not understand this. It is also clear that in her attempt to show the need for the Fetal Heartbeat legislation, she also minimizes the results of other pro-life legislation. For example, she also states in chapter 1, "We in the pro-life movement spent decades patting ourselves on the back for all of our "achievements." It's not that we didn't work hard to get them. And yes, add them all up, and they saved some lives." This argument completely ignores some of the real numbers that states achieved and the numerous studies done by pro-life scholars on the effectiveness of those laws. Texas Lieutenant Governor Dan Patrick may have said it best at the 2021 Texas Alliance for Life Banquet regarding the effectiveness of the 2011 ultrasound law that passed in his state. At that time, Texas was averaging roughly 75,000 abortions per year. Since that time, it has averaged 55,000. In his estimation, that law, along with other pro-life laws, has helped save the lives of roughly 200,000 unborn Texans. This is a rough estimate that the Lieutenant Governor gives, and there have been other significant pro-life laws passed since that time. However, even if the number is not exact, that is far from the “some” that Mrs. Porter asserts.
Furthermore, the pro-life Hyde Amendment is another piece of pro-life legislation that has saved millions of lives over the decades. In his “Addendum to Hyde @40: Analyzing the Impact of the Hyde Amendment”, which can be found at the Charlotte Lozier Institute, Dr. Michael New estimated that the pro-life policy saved 2,409,311 lives since 1976. If you add up all the various pro-life incremental legislation in the states, millions more have been saved as well.
Part Two: The Connection Between Fetal Heartbeat Legislation and Incrementalism:
It is interesting to note that it is precisely because of incrementalism that the Fetal Heartbeat legislation may pass constitutional muster. Many of us are all too painfully aware that it is not uncommon for abortion advocates to challenge pro-life laws in the courts. In many ways, this has set up various US Supreme Court rulings on what can happen with pro-life legislation. The particular case of specific interest here is the Gonzales v. Carhart case which decided the constitutionality of the US Partial-Birth Abortion Ban. The US Supreme court held that the law was, indeed, constitutional. However, there is a particular point within the ruling itself that Mrs. Porter's argument relies upon. As a finding of fact, the Court acknowledged that "a 'living fetus' is recognized from the time of …' detectable heartbeat.'" While widely known in the field of biological sciences and medicine, this simple fact was now a legal fact recognized by the US Supreme Court precisely because of an incrementalist bill that had passed and was signed into law in 2003. But furthermore, it shows a clever maneuver that turns the Supreme Court's viability standard on its head by claiming the detectable fetal heartbeat is the new standard since that is the standard to detect a viable pregnancy (see page 96). Sadly, though this discussion of viability is not discussed more than a few pages in a book that is 415 pages long.
In many ways, Fetal Heartbeat Legislation fits within the incrementalist framework already. As many states pass more pro-life laws, it is clear they become more ready to accept a Culture of Life. This is how incrementalism works. The more a state passes pro-life laws, the more willing a state becomes to outlaw abortion. In many ways, this is why Texas has just gone on with normal everyday life since the Texas Fetal Heartbeat Law went into effect on September 1, 2021. In a state where abortion is seen as abhorrent by most citizens, it was only natural for the state to take the next step. The fact is, many of the states that already have some of the most vigorous pro-life laws on the books are now looking to pass the Texas Model. Those states that have trouble passing the simplest of pro-life laws are not.
Part Three: It May Not Be a Fetal Heartbeat Law that Overturns Roe:
While Mrs. Porter argues that it will be a Fetal Heartbeat Law that will overturn Roe, the fact is that is mere hyperbole. Any pro-life law has that capability. In fact, this is something that any experienced pro-life public policy expert, including Mrs. Porter, should know. Each piece of new legislation is designed in such a way with the specific intent to help overturn Roe. Each piece of legislation is designed to either show the unborn child's humanity or how abortion harms women or both. Fetal Heartbeat Bills do the same thing. They are designed to show the humanity of the unborn child. That this child has a heartbeat-like you and me. We could look at the Pain-Capable Unborn Child Protection Act as well, a late-term abortion ban designed to show the humanity of the unborn child by showing that the unborn child feels pain like you and me.
In some way, each type of pro-life legislation is designed in such a way to overturn Roe, yet unfortunately, Mrs. Porter does not elaborate on this fact. She does point out how Fetal Heartbeat Laws are designed to overturn Roe, as shown in part two. To be honest, pro-life legislation protecting the IVF embryonic child that has been signed into law may be the impetus for finally overturning Roe. The simple fact remains, any number of laws could potentially overturn that dreadful decision. At present, the best case seems to be the Dobbs case out of Mississippi, which does not involve a Fetal Heartbeat Law but rather the state's 15-week abortion ban. Now, like the Fetal Heartbeat Law, it is a pre-viability abortion ban. But the fact remains that as of this writing, this could be the case that overturns Roe.
Part Four: The Issue of Prudence:
Much time is spent throughout the book criticizing those pro-life groups who were not supportive of Mrs. Porter's efforts to not only get a Fetal Heartbeat bill filed but passed and signed into law within the various states. In fact, she devotes an entire chapter to it (chapter 6). While I agree with Mrs. Porter that this is much-needed legislation and that even while going through the legislative process, it does have an educative effect on the community of the state, I still don't think she gives these pro-life organizations a fair "hearing" on why they may be opposed to such initiatives.
Please keep in mind that Mrs. Porter began her quest for the Fetal Heartbeat Bill in 2010. The makeup of the US Supreme Court was much different than it is now. Part of the agenda of pushing for a Culture of Life is pushing the envelope. So, legislation is designed to target Roe, hopefully, to overturn it, and in such a way, the law will be upheld in the case that Roe is not overturned. This is how the pro-life movement can chip away at Roe. It is a methodical legal strategy. One consideration that must be made is the makeup of the Court itself as well.
In 2010, and for much of the rest of the decade, the Court was highly unlikely to uphold any state pre-viability ban. Many groups would have seen the effort to push for such legislation as unnecessary since it would have been immediately enjoined and likely held to be unconstitutional. As a result, states would likely have to pay the attorney's fees of the abortion industry who fought those laws. Those costs can be upwards of several million dollars. That is taxpayer money going into the abortion lobby’s coffers. Some simply saw this as the likely path that was going to happen given the circumstances of the time and did not want to have any money going to the abortion industry. It was a prudential decision that organizations and politicians had to make. Yet this explanation is not given in the book. When a pro-life group has its hesitations about the bill, it is incorrect to say that it is somehow not pro-life. It is a false conclusion. While Mrs. Porter may wish to forge forward, it is not necessarily immoral of the others to either stay out as a neutral party or even oppose the bill if they think it will end up being a payoff for the abortion industry's lawyers because of its lack of constitutionality given the circumstances. In fact, she should have expected something along these lines when she was told that they opposed it based upon constitutional grounds. At that point, she should have shored up a better constitutional argument. Maybe she did, but nothing is described as such in the book. Only by the close of 2020, the US Supreme Court has a majority of what is considered conservative justices. And literally, the last one was finally approved by the US Senate in October of 2020.
However, this is not to say that states could not push the envelope with such legislation. It is not uncommon that they do. For example, many states were eager to pass bills that required abortionists to have admitting privileges. Most pro-life groups thought they would be upheld as constitutional. But in 2015, the US Supreme Court held that the Texas mandate was unconstitutional. States tried to tweak the law a bit, like Louisiana, yet in the Summer of 2020, again, the US Supreme Court struck down the law based on the 2015 decision. And that was with a slim conservative majority on the bench. However, at the same time, it is easy to see why some states, given the 2015 decision, may be reluctant to pass such legislation.
People have to make prudential decisions. Now while Mrs. Porter does give an analogy on page 194 of her book, I do not think she follows the logic quite correctly. Mrs. Porter fails to understand that, fundamentally, she is still an incrementalist. Every new piece of pro-life legislation is always at risk of being enjoined and eventually being declared unconstitutional. There is never a guarantee since no human being has absolute insight into the minds of all nine of the US Supreme Court Justices. Mrs. Porter, like all other pro-life leaders, must rely on the legal expertise of her lawyers. Lawyers, even pro-life lawyers, can disagree on pro-life legislation. They may disagree on its effectiveness. They may disagree on the timing of the legislation. But make no mistake, they do agree that the Fetal Heartbeat Bill is pro-life. It is incorrect to publicly demonize pro-life allies who may disagree with you based upon sound prudential reasons. Mrs. Porter may not like their reasons, but that does not automatically make those reasons unsound.
Furthermore, it would have been a great service to her book to have gone into more detail about the pro-life prudential arguments against her bill and have her explain why those arguments, while understandable, may not be the best course of action. It seemed little attention was paid to this. Still, instead, she focused on more personal details of what was happening behind the scenes to her that ultimately were not pertinent to a book devoted to both the policy of the Heartbeat Law and the lobbying of a Heartbeat Bill.
Part Five: The Connection Between Dismemberment Abortion Bans & Fetal Heartbeat Laws
At one point, Mrs. Porter criticizes Right to Life of Michigan President Barbara Listing for prioritizing a Dismemberment Abortion Ban Bill over her Fetal Heartbeat Bill. Mrs. Porter tells Ms. Listing on page 170 in her book, "Pro-lifers are not satisfied with a 'dismemberment ban' that educates but protects no one." This one phrase is particularly problematic for several reasons. For one reason, it seems that she downplays prudence again. But secondly, the statement fails to understand that both pieces of legislation are the next steps of pro-life incrementalism. In some ways, the Dismemberment Abortion Ban, also known as the Pain-Capable Unborn Child Protection Act, certainly can act as a precursor of sorts to a Heartbeat Law. Why? Because both rely on the idea of a living unborn child as a fact of law, and Dismemberment Abortion Bans mandate that a dismemberment abortion cannot happen to a living unborn child.
It is important to note that many abortionists oppose this law primarily because it forces them to perform a procedure that kills the child before the dismemberment. This additional procedure to cause the unborn’s death is a practice that can be complicated, and simply put, some abortionists do not want to go through the training to learn. This alone would deter, at least, some abortionists from doing the procedure and would save some lives.
But the important point here is that it focuses once again on the living unborn child. The Dismemberment Abortion Ban is a natural progression, or step forward, in incrementalism. Like the Fetal Heartbeat Law, it relies on the finding of fact in the Gonzales v. Carhart US Supreme Court ruling. It certainly is plausible that some may have thought that this law may need to pass first to better help establish that finding of fact under the law.
Regardless, the debate surrounding these particular pro-life public policy issues are not debated within the book. Sadly, they are not even really considered in the first place. It would have been wonderful for an argument to see how both bills could pass simultaneously. Or even why, these are really brother bills. But that never occurs.
Part Six: The Texas Fetal Heartbeat Law – The New Model:
While this book was published before the Texas Fetal Heartbeat Law was filed as a bill in the 2021 Texas Legislature, it nonetheless has changed the debate of Heartbeat Laws in general. It poses some questions for this particular book as well. Interestingly, its private enforcement mechanism has come to be of peak interest to this specific law. Something that was not crafted by Janet Porter or her public policy team. Rather, this mechanism was crafted by Texas attorney Jonathan F. Mitchell. He has been in the pro-life public policy battles since working in the Texas Attorney General's office.
The private mechanism is certainly unique, but its origin was not in the Fetal Heartbeat Law, but rather the pro-life Sanctuary City for the Unborn Ordinances that have been passing among Texas cities and in cities in Nebraska and Ohio. The mechanism made its way into the bill that would eventually become the Texas Fetal Heartbeat Law.
It is also important to note that the private enforcement mechanism had its first real test in Lubbock's Sanctuary City for the Unborn Ordinance. In May of 2021, the city's voters passed the ordinance that was set to go into effect on June 1, 2021. Later in May, Planned Parenthood sued to enjoin the law, and the federal district court threw out the case because Planned Parenthood lacked jurisdiction to challenge the law. Simply put, they had to wait for someone to sue. The law has been in effect ever since, and abortions have shut down within the city. The Texas Fetal Heartbeat Law went into effect September 1, 2021. And as everybody is aware, the abortion industry and the Biden Administration have challenged the law and have tried to enjoin it…without success. Even the US Supreme Court has noted that the challenge must be done properly.
What is so interesting about the new model Fetal Heartbeat Law is the mechanism. But what is telling are the states that want to pass this new model version. These states that want to pass it are the ones that are solidly pro-life, meaning they have already passed many pro-life laws, to begin with. What does this tell us? If one were to look at the situation critically, one would certainly come to realize that it is those states that have advanced the Culture of Life through incremental legislation that are the ones most ready to pass an enforceable Fetal Heartbeat Law. I do not hear pro-life politicians in purple to blue states clamoring for the Texas Model. I can only hazard an educated guess as to why because, from a cultural standpoint, society has not been moved enough in favor of life to do such a thing yet. This means other pro-life incremental legislative initiatives need to pass first to get to that point. In a state that barely has a pro-life majority within the legislature, it may not be the most prudent move to pass a Texas-Model Fetal Heartbeat Law. Why? Because it may end up backfiring in the next election cycle by having many pro-life legislators be defeated at the election polls, thereby having the law repealed or amended to such an extent that it is no longer pro-life. It may be more prudent to pass a Parental Notification Law or an Informed Consent Law instead. Incrementally pass laws and add more pro-life legislators. Get to the point where the statewide community is accepting of a life-affirming law such as this. Texas spent decades reaching a point to pass such a law. But, from my analysis, it seems to me that the only reasons why other than to save the lives of the unborn, the Texas Legislature passed this law was threefold: 1) They believed there were six votes on the US Supreme Court in their favor, 2) the private enforcement mechanism seemed like it could work, and 3) there would be minimal political repercussions.
This is the crux of incrementalism. When St. John Paul II stated in Evangelium Vitae (no. 73) that when lawmakers are faced with the difficult task of voting for a law that could limit the harm the of existing evil law, because it is not possible, at the time, to repeal the evil law, they can morally vote for that bill that would limit the harm. St. John Paul II recognized that limiting the harms of the existing evil law, such as legalized abortion on demand, can help pave the way for more pro-life laws that will eventually lead to the abrogation of the existing evil law. The point here is that both the Texas Legislature and the Texas Governor believed that certain conditions existed for them to take the next step to help them usher in a fuller context of the Culture of Life within the State of Texas.
Part Seven: Conclusion:
For me, I was disappointed with the book. I was expecting a book that would detail public policy debates, lobbying strategies, and comparisons with other pro-life legislative initiatives. Sadly, it airs “dirty laundry” that in many ways is unsubstantiated and is more of an autobiography than any serious effort to explore one of the most popular pieces of pro-life legislation.
Sadly, Ms. Porter does not even come to a full recognition that in the ultimate conclusion, even her bill is incremental. After all, it does not fully ban abortion, only when there is a detectable heartbeat. While that will encompass the vast majority of abortions, it will not legally stop all of them. The abortion pill can still be distributed to those pregnant mothers who reach an abortion clinic before their sixth week of pregnancy. And there is a real possibility that Roe v. Wade may not be completely overturned, but that the so-called “liberty interest” of abortion, as stated in Casey, will only be severely restricted to the point of a Fetal Heartbeat Law. In that case, the pro-life movement will have to continue working on legislation that will hopefully one day overturn the remainder of Roe.
I have to ask, who is this book exactly written for? It seems that she is writing to those grassroots that are interested in getting a Fetal Heartbeat Law passed. However, by demonizing other pro-life leaders and organizations, it would seem that it only goes to scandalize the grassroots rather than get them excited about pushing this type of legislation. Ultimately, it seems to me that it serves as more of an autobiography for Mrs. Porter during her time pushing the Fetal Heartbeat Bill. And with the rise of the Texas Model, it is clear that the most active pro-life states (those with the most pro-life laws) will be looking to pass that model than the original model. This, in turn, since it can go into effect, will shut down most of the free-standing clinics that only do surgical abortions. However, those that still do chemical abortions, such as Planned Parenthood, will not close. Those purple or blue states will not be looking to pass such legislation, and pro-life organizations will be looking to pass legislative bills that will be more tenable in such legislatures.