Although the Eighth Circuit Court of Appeals struck down laws in North Dakota and Arkansas barring abortions after a “fetal heartbeat” is heard, and an Iowa state judge did the same to a similar law in that state, this hasn’t stopped lawmakers in at least 17 other states from introducing and sometimes passing similar bills. The Tennessee House of Representatives passed such a bill Thursday, and a committee in the Georgia House of Representatives has now approved one, too.
While the Georgia bill includes exceptions in cases of rape and incest, Republican lawmakers in Tennessee refused to allow introduction of an amendment that would have added those exceptions in their state.
Fetal heartbeat laws are particularly foul because a “heartbeat” can typically be detected in the embryonic stage of development, at as early as six weeks’ gestation. That is before many women even know they are pregnant. Moreover, the term “heartbeat” isn’t even accurate. According to Dr. Rebecca Cohen, an assistant professor of obstetrics and gynecology at the University of Colorado, “It’s not a fully formed heart like you would understand from looking at an adult or even a young child. It’s a very early structure. We can see it on the ultrasound, but it’s not a heart, a fully developed organ, by any means.”
The Tennessee bill was taken up outside the regular order of business Thursday without undergoing the committee hearing most bills receive.
As has been the case in other states, forced-birthers have been split on whether to support heartbeat bills. Some activists don’t want to see laws enacted that they believe would not survive legal scrutiny. The American Civil Liberties Union and Planned Parenthood of Tennessee and Northern Mississippi said they will file suit if the bill becomes law.
The Tennessee and Georgia bills are brazenly unconstitutional because they cut against the U.S. Supreme Court’s 1973 Roe v. Wade ruling that bars states from banning abortions before fetal viability. That is generally considered to occur around the 24th week of gestation, although 21 states have banned abortion at 20 weeks or less, moves that have yet to be tested by the Supremes.
Joel Ebert and Natalie Allison report:
Among the amendments filed [in the Tennessee House] was one from Rep. Gloria Johnson, D-Knoxville, that would allow abortions in the case of rape or incest.
Johnson remained standing throughout the floor discussion in an attempt to present her amendment, though House Speaker Glen Casada, R-Franklin, ignored her, declining to call on Johnson as he allowed other Republicans and Democrats to speak.
Republicans voted to end discussion before she could speak, a move House Democratic Caucus Chair Mike Stewart, of Nashville, said afterward was a deliberate act by Casada to prevent Johnson's amendment from being heard.
The bill passed 66-21. All the foes were Democrats, although some Republicans did not vote. If the bill passes the Senate, which seems likely, it will almost certainly get Republican Gov. Bill Lee’s signature. He has said he favors any new restrictions that will reduce the number of abortions.
In Georgia, the 17-14 committee vote was strictly along party lines, with 13 Republican men and four Republican women voting for it, and seven Democratic men and seven Democratic women voting against it. Abortions would be allowed there in cases when the mother’s life is at risk or in cases of incest or rape that are reported to the police. If the bill can win majorities in both the state House and and the state Senate, it’s guaranteed the signature of Republican Gov. Brian Kemp, who defeated Democrat Stacey Abrams in a November election brimful of irregularities and voter suppression. He vowed during his campaign to sign the "toughest abortion laws in the country," and included support for a “Heartbeat Bill” on his campaign website.
The first “heartbeat” bill was introduced in Ohio in 2011, but it wasn’t until 2016 that the legislature there actually passed it. That was vetoed by then-Gov. John Kasich on constitutional grounds, even though the Republican counts himself in the ranks of forced-birthers. In 2013, both Arkansas and North Dakota passed “heartbeat” bills that, as noted, were subsequently struck down by the Eighth Circuit Court of Appeals. The U.S. Supreme Court chose not to review the case.
But these decisions have not stopped other states or members of the U.S. Congress from trying to pass similar laws. Besides the states mentioned above, Michigan, Minnesota, New York, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Mississippi, Florida, Missouri, and Kentucky have all made forays into this territory.
Short of the Supreme Court overturning Roe, these and some other restrictive laws that attempt to make abortion more difficult, more time-consuming, more expensive, and more invasive of women’s personal decisions will continue to fail the constitutional test under that 46-year-old ruling. Given the new make-up of the court, however, with Brett Kavanaugh having replaced Anthony Kennedy, there’s no certainty of exactly how a major abortion case might turn out. Most longtime observers fear the ruling would not favor reproductive rights. Kavanaugh’s pernicious dissent in a Louisiana case a month ago has strengthened those views.
Meanwhile, states continue to pass restrictive laws that do pass constitutional muster. And even in instances where laws are overturned, the damage is often already done. In Texas, for instance, a law mandating rules for abortion clinics and doctors was overturned by the Supreme Court in 2016. But by the time the justices got around to making their ruling, only 19 of the 40 abortion-providing clinics that had operated before the law was passed had survived.
Reproductive rights activists will fight back, of course. But outside of a dozen states where women's access to abortion remains strong and has even, in a few instances, been improved, the forced-birthers continue to nibble away at women's right to control their own bodies. Whatever else can be said about them, they provide a model for emulation in their never-surrender-never-give-up activism. They won't be satisfied until every abortion in the nation has to be performed in a back alley.