Fetal Heartbeat Bill & Story of De Facto ban on Abortion in the U.S

The Fetal Heartbeat Bill yet again opens a new battle over abortion restrictions after Governor of Texas, Greg Abbott signed an infamous bill that would ban abortions as soon as a so-called fetal heartbeat can be detected. The law will take effect in September 2021. Apparently, no specific time frame has been tied to the restriction. According to the American Congress of Obstetricians and Gynecologists, fetal heartbeats can be detected as early as six weeks gestation or six weeks from a woman’s last menstrual period, not since the start of her pregnancy. 

When an ultrasound can detect the pulsing of what will become the fetus’s heart, the abortion could not be legal. This is the period before many women even know they are pregnant, with majority of women who have abortions doing so after six to seven weeks’ gestation period. Hence the law will effectively ban most abortions in the state. It also doesn’t provide any exemption in cases of rape or incest, a provision that has been the standard in abortion laws. Reproductive rights advocates and activists opine that such Bills are de facto bans on abortion. 2018-21 witnessed many states proposing Heartbeat Bills whiles states such as Ohio, Georgia, Louisiana, Missouri, Alabama and Kentucky even passing the Bill in 2019. Majority of them fall either partly or entirely in the Bible belt that is located in the Southern United States where social conservative Christianity is dominant. 

Emotion over Science 

Moreover, the fetal heartbeat criteria isn’t medically correct as it calls pulsing a heartbeat. In fact it is the embryonic cardiac activity or vibration of the fetal pole that is a tube like structure that will later become the heart. Politically and religiously charged aims coupled with inaccurate and vague terminology used in abortion laws are meant to tug at supporters’ heartstrings. But in reality, there is no heart formed in the embryo and war of words is only the means to achieve the end.   

This law could also negatively impact women who have non viable pregnancies that aren’t identified by the six-week, by allowing a non viable pregnancy to continue until it causes direct harm to a woman’s health. One of the examples of this situation can be ectopic pregnancy in which an embryo is developed outside the uterus and according to reproductive health experts any standard medical practice of terminating an ectopic pregnancy at early stage would also be not possible under this law. The legislatures even missed the discussion over the possibility of miscarriage after detection of fetal cardiac activity, whether such a person would be prosecuted and the subsequent delay in seeking necessary prenatal medical care.   

Every Citizen is now a Private Attorney General

The Texas Bill has one more twist that make it more controversial i.e., it allow any private citizen regardless of the fact if they live out of the state, to sue an abortion provider or others who “aid and abet” an abortion in violation of the new ban. The republican legislatures pushing anti-abortion legislations is hoping reconsideration of Roe v. Wade in the new conservative majority in the U.S. Supreme Court. This would be a new concept in Texas law to empower people of Texas to enforce the law as it is reported that some district attorneys refused to enforce a fetal heartbeat bill. Now the people are a newly empowered entity taking over the government’s role to enforce the law, irrespective of their connection to someone who had an abortion or to a provider, to sue.

Such provision allows every citizen to act as a private attorney general as now every random person who is against abortion can sue you tomorrow. This could also lead to a cascade of lawsuits against clinics and other providers of abortions which would result in the tying up of huge amounts of time money in litigation  even if they ultimately won in Court. 

Roe v. Wade Ruling: Among the first to establish Women’s Legal Right to an Abortion 

The event in Texas is followed by the U.S. Supreme Court decison to hear Mississippi anti-abortion law that bans abortions after 15 weeks. The case,  Dobbs v. Jackson Women’s Health Organization deals with Mississippi Anti-abortion law passed in 2018 that aim to ban abortion after 15 weeks “except in a medical emergency or in the case of a severe fetal abnormality.” But the ban was blocked by lower courts arguing that the law violates previous Supreme Court rulings.  

The 1973 US Supreme Court decision in Roe v. Wade has set a current constitutional standard that declare abortion as legal up until the point when the fetus could survive outside a mother’s womb that is usually about 24 weeks into the pregnancy. The embryo in case of six weeks into a pregnancy, doesn’t have a brain or organs that would enable survival outside the womb. Thus, it prohibits states from any such ban on abortion before a fetus can survive outside the womb and these legislations also fall under that limit.   

What Lies Ahead? 

As Roe v. Wade is still a controlling and superior precedent, it is likely that such anti-abortion laws would be declare unconstitutional as any limit prior to viability, violate a woman’s right to privacy. Such recent development in Texas is a sheer tactic to control bodies of pregnant women and prevent them from making their own decision. The author opines that the law is unconstitutional and an example of unnecessary political interference in the practice of medicine. Safe and legal abortion is one of the important components of women’s health care and many factors can necessitate or influence a woman’s decision to abort such as financial circumstance, unplanned pregnancy, fetal anomalies and illness during pregnancy. Reduced access to abortion also negatively impact the health including maternal and infant mortality along with forcing one to proceed with self-induced or back alley abortion. 

Instead of turning the clock back to the times of Roe v Wade, states must uphold the legal right to abortion.

Dikshi Arora is a second-year law student at Rajiv Gandhi National University of Law, CPL 2021-22 Public Policy Fellow and Columnist for Centre for New Economics Studies, O.P. Jindal Global University.

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