Heartbeat bills use Roe's logic to strike at abortion

Abortion stops a beating heart, but can new heartbeat laws stop abortion? Two states enacted historic legislation in March that seeks to drastically reduce the number of children killed through abortion by using the Supreme Court’s own Roe v. Wade jurisprudence against legal abortion. 

North Dakota and Arkansas are the first U.S. states to have enacted the bans on abortion — as early as five to six weeks gestation — based on when an unborn child’s heartbeat can be detected by ultrasound in the womb.

Rational policy

“We as a society say that the heartbeat is life. If that’s what society says is life, how can we continue to abort children with beating hearts?” asked North Dakota Rep. Bette Grande, Republican author of the state’s heartbeat bill, HB 1456. 

The North Dakota law would practically ban all abortions, as a heartbeat can be detected between five and six weeks gestation. According to 2010 state data, only 137 out of 1,291 abortions were performed at five weeks or less. The law provides that abortionists breaking the law would face up to five years in prison and a $5,000 fine. 

The North Dakota heartbeat bill requires an abortionist to perform an ultrasound before performing an abortion. If a heartbeat is detected, an abortionist is prohibited from performing an abortion unless to save the life and health of the mother “from substantial and irreversible impairment.” 

North Dakota Gov. Jack Dalrymple signed the bill into law March 26. 

Arkansas passed the Human Heartbeat Protection Act sponsored by Republican Sen. Jason Rapert. The bill survived a March 4 veto from Democratic Gov. Mike Beebe after the state House and Senate each voted to override it. 

“We need to have a more rational policy on abortion. I believe the heartbeat bill and the heartbeat bills that are being advanced in other states are a step toward that,” Rapert told Our Sunday Visitor. “They are a reflection of a very deep-seated unrest in many people on this issue.” 

The Arkansas heartbeat bill bans abortion when a heartbeat is detected with an abdominal ultrasound, generally around 12 weeks gestation, but makes exceptions for rape, incest, the life or health of the mother and lethal fetal abnormality. The law has no criminal penalties for abortionists, although the Medical Board may revoke their license for violating the law. 

The Arkansas heartbeat bill has the potential to save the lives of as many as 20 percent of the unborn children killed by abortion every year in Arkansas. According to 2011 state data, doctors performed 4,033 abortions of unborn children, while 815 were aged 12 weeks gestation and older.

‘Compelling point’

Grande said that she crafted the North Dakota bill, HB 1456 to challenge the constitutional protection of abortion in Roe v. Wade with Roe’s own legal reasoning. 

“I don’t see this bill as challenging Roe v. Wade, I see it as working within the confines of Roe v. Wade,” she told OSV. “Will this change the way Roe v. Wade is interpreted and used: absolutely.” 

Grande said that the U.S. Supreme Court in the 1973 Roe v. Wade and Doe v. Bolton cases established three “rights” in the case of pregnancy: a right to privacy (which included abortion), the right of the state to protect the life and health of the mother, and the right of the state to protect what the court called the “potential life” of the unborn child. 

“After finding the three rights — the central issue of Roe was how to balance these rights,” Grande said. “The Court determined — based on man’s knowledge in 1973 — that viability was the ‘compelling point’ of a pregnancy. Prior to viability, the right to privacy was stronger; after viability, the duty of the state to protect potential life was stronger.” 

Grande said her intention is to make fetal heartbeat — and no longer viability at 24 weeks — the “compelling point” of pregnancy. 

Both Grande and Rapert said it’s time to get the high court to reconsider Roe on the basis of modern medical advances, such as 3-D and 4-D ultrasound technology and prenatal surgery. 

“They need to take a look at the improvements in science, technology, medicine and other areas that have given us a deeper understanding that you have a child in the womb,” Rapert said.

Catholic support

Bishop Kagan

The North Dakota Catholic Conference threw its support behind passage of the heartbeat bill, and lawmakers drew praise from Bishop David Kagan of the Diocese of Bismarck for “bravely” enacting the heartbeat law (see sidebar). 

“[The heartbeat bill] was not a piece of legislation so blatantly unconstitutional that we would not have supported it,” Chris Dodson, executive director of the NDCC, said. 

Dodson said the heartbeat has relevance for the high court, because after it is detected, it is “very likely that the child will come to full term.” The viability standard, however, changes with technology that is available to the unborn child. 

“The heartbeat standard is based on science, while viability wasn’t based on science,” Dodson said. 

Marianne Linane, director of the Diocese of Little Rock’s Respect Life Office, told OSV that the diocese did not oppose the heartbeat bill, but did not believe it had the chance of success that the abortion ban based on fetal pain bill had. 

“We figured the 20-week limit is probably the lowest time right now where we can protect life,” Linane said. “Now the [heartbeat] bill is law we have to do everything we can to make sure it survives a challenge.”

Challenges ahead

“The Arkansas Legislature has done the right thing. Governors aren’t governing their people if they aren’t protecting them. One of the most striking and effective statements over the years by the pro-life movement has been ‘Abortion stops a beating heart.’ It’s still true, and it’s about time the law starts catching up with that fact.” — Father Frank Pavone, national director of Priests for Life, praising the Arkansas heartbeat abortion ban.

The New York-based Center for Reproductive Rights has signaled its plans to challenge the heartbeat laws with lawsuits in federal court and the American Civil Liberties Union said it is considering mounting challenges to them.  

Indeed, in his statement announcing he had signed the heartbeat bill, North Dakota’s Dalrymple advised the state’s legislative assembly to appropriate money for a litigation fund to defend the law. 

Matthew Gerlach, a theology professor and coordinator of the Catholic Studies program at the University of Mary in Bismarck, said Catholic teaching requires lawmakers to craft laws carefully that both serve the common good and have a reasonable chance of success. 

“Politics is called the art of the possible, and we have to evaluate in any piece of legislation whether it’s a fight we can win,” Gerlach told OSV. 

However, even if they don’t become law immediately, he said the heartbeat bills could prove successful by getting people to think differently about abortion in the same way state partial-birth abortion bans began tilting Americans toward the pro-life position. 

“The legal battles may need to be there just to keep the debates alive until a later point,” he said. “But in the meantime, some kind of cultural, personal transformation has to happen if we’re to sustain these laws.” 

Peter Jesserer Smith writes from New York.