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Bills that would ban abortions as early as six weeks into pregnancy are spreading across the United States, fast.
The legislation would outlaw abortion as soon as a fetal heartbeat is detected, before most people even know they’re pregnant, abortion rights advocates say. The bills represent some of the strictest anti-abortion measures in the country.
Even opponents of abortion were once unconvinced that a "heartbeat" abortion ban could succeed when legislators introduced the nation’s first version, in 2011. But so far in 2019, at least 13 state legislatures have introduced bills to outlaw abortion as early as six weeks into pregnancy, according to a tally by the Guttmacher Institute. Last year, only seven had introduced bans by early March.
“These are places that have been attacking abortion rights for a long time,” said Elizabeth Nash, senior state issues manager for the Guttmacher Institute. “Like Mississippi, Missouri, Ohio — in these states there’s very little left to do. They’ve gotten to the point where they’ve adopted all of the restrictions.”
This year alone, Kentucky and Mississippi have already signed heartbeat bills into law, while Georgia is also set to pass its own heartbeat bill shortly. The state’s Republican governor, Brian Kemp, has promised to support it.
In total, four states have passed heartbeat laws. But not one has ever survived a court challenge, and not all anti-abortion activists believe that they’re worth the political and legal fight. For years, advocates have focused on passing scores of abortion restrictions that sought to incrementally chip away at Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. It’s been a wildly effective tactic: States enacted 424 abortion restrictions between 2010 and 2018, or more than a third of all anti-abortion measures passed since 1973.
But Brett Kavanaugh’s ascension to the Supreme Court, and its newly conservative majority, catalyzed a split among anti-abortion activists on whether to stay the course or try to pass tougher laws sure to trigger litigation — like heartbeat bills. Maybe, just maybe, one of those bills could become the case to finally overturn Roe.
The birthplace of the heartbeat bill
When Ohio legislators first introduced a heartbeat bill, the state’s anti-abortion lobby couldn’t agree on its feasability. Reportedly fearing that the legislation would fail in a courtroom, the powerful state anti-abortion group Ohio Right to Life refused to endorse it.
But the bill’s backers were undeterred. “Step-by-step measures haven’t stopped the killing,” Linda J. Theis, president of Ohio ProLife Action, told the New York Times at the time. “It’s hard to be against a bill that says that once a baby’s heart is beating, you shouldn’t take his life.”
The bill didn’t pass that year, but legislators in other states soon started to introduce their own editions. North Dakota eventually became the first state to pass a heartbeat bill, in 2013. Abortion groups soon sued, and a federal judge blocked the law from going into effect. In 2016, the bill finally fell apart after the Supreme Court refused to hear North Dakota’s plea to overrule a lower court ruling that the bill was unconstitutional.
"We just see this as a much more favorable time to pursue the legislation."
But Ohio’s bill kept inching closer to becoming law. The state’s former Republican governor, John Kasich, vetoed it twice in two years and argued that it would likely be struck down as unconstitutional and force the state to pay hefty legal fees. Late last year, after Kanvauagh’s confirmation to the Supreme Court, the calculus among anti-abortion groups changed: Minutes before the state Senate tried to overturn one of Kasich’s vetos in December, Ohio Right to Life announced its support for the ban.
“With the addition of Justice Kavanaugh and Gorsuch on the court, we just see this as a much more favorable time to pursue the legislation,” said Jamieson Gordon, a spokesperson for Ohio Right to Life, told VICE News this week.
Plus, the group had already successfully lobbied for bills to ban abortions after 20 weeks of pregnancy and in the case of another common method of abortion for pregnancies in the second trimester, called dilation and evacuation. Embracing a heartbeat bill, Gordon said, seemed simply logical.
“We are seeing the heartbeat bill as the next incremental step,” she said.
A question of strategy
For some abortion foes, heartbeat bills’ lack of legal success means it’s simply not prudent to pursue them over other types of restrictions. Steve Aden, chief legal counsel for the national anti-abortion group Americans United for Life, told VICE News he recently spoke with “a senior statesman, whose name you would know.” When the statesman said he wanted to back heartbeat bills, Aden replied, “Sir, you’re aware that no heartbeat bill anywhere has ever saved a human life, right?”
“Although the current court is now a majority pro-life court, for the first time in decades, we do not think that they are ready to take an early gestation abortion limitation,” Aden said. “So, strategically, the efforts should be focused on bringing cases up to the court that they would take, that they would use to erode or even overturn Roe.”
Americans United for Life’s skepticism about heartbeat bills is particularly significant, given that the organization writes the literal playbooks on pre-written abortion restrictions for state legislators to replicate. If a politician is determined to introduce a heartbeat bill, Aden said that Americans United for Life will often counsel them to also include a provision that mandates an abortion patient get an ultrasound. (Anti-abortion advocates say that ensures patients have given “informed consent” about the procedure; those on the other side of the issue argue it’s designed to intimidate people out of getting abortions.)
“We think that that’s very defensible and would be upheld,” Aden said of the provision. “And thus a heartbeat bill — so-called — would do some good for all involved, even if the heartbeat ban portion of the bill were struck down.”
NARAL Pro-Choice Ohio is equally determined to sue over the bill, according to Gabriel Mann, communications director for the group. Not only would the bill effectively shut down every clinic in Ohio — a state where more than 20,000 people elect to have abortions each year, Mann said — but NARAL Pro-Choice Ohio doesn’t want to give the Supreme Court an opportunity to reexamine Roe.
“If they follow 46 years of legal precedence, then they should also block these,” he said. “But the court’s changed. So that’s why we’re putting every effort that we have into stopping this from passing in Ohio first.”
But Mann pretty sure the bill won’t stand. He’s been told, “You could file a lawsuit in crayon and the bill would get blocked.”
Correction 3/31 6:00 p.m. ET: A previous version of this story incorrectly spelled Gabriel Mann's last name.
Cover image: Janet Folger Porter, president and founder of Faith 2 Action, posts signs during a press conference at the Ohio Statehouse in Columbus, Ohio on Tuesday, Feb. 14, 2012, as the Faith 2 Action group were delivering bouquets of roses to Ohio Senators in order to draw attention to House Bill 125, also knows as the Heartbeat bill. (AP Photo/Columbus Dispatch, Brooke LaValley)