Analyzing the Proposed Heartbeat Abortion Ban By Katherine Slye

A recent mode of attack on a woman’s right to choose is the heartbeat bill that ban abortions if a fetal heartbeat can be detected; such a heartbeat can be detected as early as 6 weeks, before many women even know they are pregnant. These bills have been popular in state legislatures over the last few years, and North Dakota is a great example of what happens when they become law. This bill passed the state legislature and was signed by the governor in 2013, however, it was immediately challenged. Governor Dalrymple said the bill was intended to spark a court challenge and was “a legitimate attempt by [the] state legislature to discover the boundaries of Roe v. Wade.” In 2015, the 8th Circuit District Court struck down the law because it clearly violated the privacy protections established by Roe v. Wade. This ruling is final, there is no way to appeal to the Supreme Court, because the federal three judge panel came to the same conclusion as the district court.

You might assume this would be the end—any state law that would be passed would be struck down for the same reasons—but it never is. This January, Representative Steve King (R-IA) introduced a similar bill in the US House of Representatives. This in itself is not a problem. Many bills are introduced every year at the state and federal level that are never voted on, much less get a hearing. However, as we have seen, the times we live in are far from normal.

The U.S. House of Representatives held hearings on H.R. 49, the Heartbeat Protection Act of 2017, on November 1st. This bill would not only prohibit abortions if a fetal heartbeat can be detected. It would also impose a fine and/or up to five years in prison for any physician found to violate this act, though the woman would not face any penalties for undergoing the procedure. Should this act pass both houses, President Trump would likely sign it, but there are many reasons this act is unconstitutional and courts, including the Supreme Court, would overturn it, so long as it happens before any vacancies occur on the Court.

Other than the clear violations of the right to privacy cited by the 8th District Court, there are also no exceptions for health, physical or mental. In Stenberg v. Carhart (2000), a case the dealt with a Nebraska law that outlawed “partial-birth abortion,” the Court ruled that the law violated Roe and Casey and said that abortion restrictions must include exceptions for the health of the mother. H.R. 49 has no such exception, and the only way for a court, or the Supreme Court, to uphold the Act would be to go against an almost 18-year-old judicial precedent.

Another Court ruling that helps us understand why H.R. 49 would be thrown out in court also dealt with “partial-birth abortion.” In 2007, the Court ruled in Gonzales v. Carhart that the federal partial-birth abortion ban was constitutional because it was specific, and was not unnecessarily broad. By this “broadness” standard, H.R. 49 could fail. Since a heartbeat can be detected so early in pregnancy, it would in essence outlaw all abortions, which is quite broad and seems to violate the 2007 precedent.

So long as any federal heartbeat bill came before the Supreme Court before President Trump gets another opportunity to appoint a Justice, it would probably be struck down for the above cited, or other, reasons. However, given how slowly the court system works, this is a real concern—quite a few of the more liberal Court Justices are getting older and closer to retirement, and other Trump appointee replacing one of them when hearing a case on such a bill could lead to a drastic change in jurisprudence regarding privacy and a woman’s right to choose.

The best hope for women is that this bill, if voted out of the House, as was the 20-week abortion ban in early October, would stall in the Senate, as so many other Trump initiatives have so far this year. However, many of the Senators who have opposed or spoken out against the President have strong pro-life views. The key to stopping this legislation in the Senate might be to appeal to these Senators’ desire for small government, or letting the states deal with issues, instead of the federal government, but this is in no way a perfect strategy.

Katherine Slye, MA is a PhD Candidate at the University at Albany working on her dissertation, which examines the past lobbying strategies of abortion interest groups, "How Choice is Made in the Choice Debate."