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Focusing the Debate:
Fetal Heartbeat Legislation
Ana Brennan, J.D. | 08 April 2021
Since 1973, pro-lifers have consistently pursued incremental policies to attain the goal of restoring legal protection to the unborn. Parental involvement, informed consent, clinic regulations, and waiting periods have all proven to be effective tools to reduce abortion and protect women from the unscrupulous abortion
Still incremental, pro-life policies began to evolve in the 1990s. The pro-life movement expanded from pursuing regulatory policies to actually prohibiting a type of abortion, partial-birth abortion. There was debate regarding the efficacy of pursuing a ban on an abortion procedure. Did anyone seriously think a ban would withstand a court challenge?
First, it is important to remember the Supreme Court initially struck down many incremental policies that came before. Second, it is important to remember abortion law is a law unto itself. Long established legal principles are either ignored or applied sparingly. Second, the Court is constantly creating new constitutional standards within abortion jurisprudence. All doubt about whether or not the Supreme Court would uphold a partial-birth abortion ban was removed in 2007 when the Court upheld the federal ban in Gonzales v. Carhart (550 U.S. 124).
At one time, banning an abortion procedure seemed implausible, now we have states implementing abortion bans based on the gestational age of the child, sex of the child, whether the child feels pain, whether the child has down’s syndrome, and whether or not the child has a heartbeat. Like the partial-birth abortion ban, these laws keep the focus of the abortion debate on the humanity of the child and the horror of abortion.
Out of the plethora of pro-life legislation proposed in state legislatures, fetal heartbeat bills seem to be the most problematic from a legal standpoint. Fetal heartbeat bills ban abortion once a child's heartbeat is detected, which is around six weeks of pregnancy. Essentially, fetal heartbeat bills outlaw almost every abortion, unlike the other prohibitions that apply to certain unborn children or a specific procedure. Whether the Supreme Court will uphold such a sweeping prohibition remains to be seen. Should we still pursue fetal heartbeat bills, most definitely. The incremental approach to change requires a balance between working within the current legal framework and pushing the boundaries to change the legal framework.
It is true we should be very judicious when pursuing incremental policies. We do not want to do more harm than good. Every time we legally challenge abortion, we do risk the Supreme Court reaffirming and further entrenching abortion jurisprudence. We also know the Court is very fickle when dealing with abortion cases, so it is difficult to predict the outcome of any given case.
Alabama, Arkansas, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, and Ohio have all passed fetal heartbeat abortion bans, which are currently in various stages of litigation. In at least four states, the bill has passed through one chamber, and six other states have introduced a bill.
As pro-lifers, we sometimes take for granted that everyone knows about fetal development, but most people do not know that an unborn child has a heartbeat at six weeks. I had a pro-choice friend ask about the Georgia fetal heartbeat bill when it was in the news. I explained it outlawed abortion after a heartbeat was detected. She was completely on board. If something has a heartbeat, then it has obviously developed into a child worthy of legal protection. I was met with stunned silence when I told her a heartbeat is usually detected around six weeks.
We know a woman is less likely to have an abortion when they receive information about the humanity of their child. Most women do not have partial-birth abortions, but almost all women who have abortions have abortions after the child's heart has begun to beat. “Blobs of tissue” do not have heartbeats, but babies do.
As evidenced by the recent coverage of the Idaho senate passing a fetal heartbeat bill, abortion advocates cannot even acknowledge the child has a heartbeat. Every headline about the Idaho bill read, “so-called “fetal heartbeat.’” The heartbeat was referred to as “fetal cardiac activity.” Our enemies know that just saying the words “fetal heartbeat” threatens their agenda.
It is true fetal heartbeat bills will face an uphill battle in the courts, but that is true of any pro-life legislation. It is also true these bills have shined a light on the development and humanity of the unborn child.
 Guttmacher Report Shows Pro-Life Progress Continues as U.S. Abortion Rates Decline, Charlotte Lozier Institute, Michael J. New, Ph.D., September 18, 2019. https://lozierinstitute.org/guttmacher-report-shows-pro-life-progress-continues-as-u-s-abortion-rates-decline/.
 Bellotti v. Baird, 428 U.S. 132 (1976); Bellotti v. Baird, 443 U.S. 622 (1979); Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Akron v. Akron Ctr. for Reproductive. Health, 462 U.S. 416 (1983); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), to name a few.
 Singleton v. Wulff, 428 U.S. 106 (1976)
 Roe v. Wade, 410 U.S. 113 (1973); trimester approach, applying different legal standards for each trimester. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992); viability and undue burden standard.
Ana Brennan, J.D.
Vice-President, Society of St. Sebastian
Senior Chief, Journal of Bioethics and Law & Culture