In a Heartbeat

A number of state legislatures are engaged in the latest legal battle to extend the rights of the unborn. Bills regulating or restricting abortions from the time of the first detection of fetal heartbeat have been introduced in Ohio and elsewhere. The proposal has engendered controversy among some in the pro-life movement. Because I am a supporter of the legislation, I’d like briefly to lay out its rationale.

We begin with three facts: 

1) the scientific evidence of the survivability of the fetus,
2) current Supreme Court doctrine, and
3) the history of the successes of pro-life movement.

Recent longitudinal studies of pregnancy reveal that as many as 30 percent of natural pregnancies end in spontaneous miscarriage, but less than 5 percent after detection of fetal cardiac activity. Even in the more risky in vitro fertilizations, a similar contrast is found. Nearly 90 percent of in vitro pregnancies do not survive the first trimester where cardiac activity is not detected in the gestational sac, but over 90 percent survive the first trimester if cardiac activity is detected there. 

When viability begins is uncertain, but cardiac activity arises at a biologically identifiable moment, normally when the fetal heart is formed in the gestational sac, typically between the fifth and sixth week of pregnancy. Fetal heartbeat, therefore, has become a key medical predictor that an unborn human individual will reach viability and live birth.

Various Supreme Court opinions have declared that the state’s interest in protecting “potential life” begins when the fetus has the “capability of meaningful life outside the mother’s womb.” At present, the Supreme Court has stated that that point is around viability, but the definition of “meaningful life” means only the prediction that the child might be able to survive.

Viability, however, is a weak basis on which to gauge survivability. To begin with, there is no medical consensus as to when viability ensues. Determining viability requires a series of sophisticated tests and educated guesses. By contrast, fetal heartbeat is easily found in normal medical practice by transvaginal ultrasound. It either is or is not there.

Early delivered “viable” children (22-26 weeks) have a high percentage of mortality. Those who survive at 26 weeks and later require an extremely high degree of intensive and expensive treatment in order to survive. Obviously, the most effective method of assuring “meaningful life outside of the womb” is full-term natural birth, and fetal heartbeat is the best medical predictor of that eventuality.

Why else does the Court say that the state can proscribe abortions after viability, except to assure that the child is carried to term? Otherwise, the viability line makes no sense. Consider: The Court has said that once a child can survive outside the mother’s womb, the state can require her to keep it. If it cannot, she can get rid of it. But that’s backwards. If a state has an interest in protecting “potential life,” as the Court has put it, it should be able to require that it be protected before viability in the only way it can be protected, by continuing to have it nurtured in its mother’s womb. Conversely, if the child could survive outside its mother’s womb, and she has a right to terminate her pregnancy, why must she be forced to keep it? This has led to an absurd clash of “rights” that the law has so far not resolved.

We are left then with only one conclusion: full-term natural birth is the best guarantee of survivability and fetal heartbeat is the best predictor of that result.

Protecting the unborn at the point of heartbeat in no way implies that there is no human person before that point, just as prohibiting partial-birth abortions in no way implies that other methods of destroying the child are morally acceptable. 

Finally, look at the history of pro-life successes: each has been an incremental victory against a hostile judiciary. Yet some argue that we should not pass a bill that a court might disallow, only bills sure to be upheld. This is a strange way of protecting the unborn. It surrenders to the status quo. There is no victory in allowing the vast majority of unborn humans to remain at risk.

Besides, such a stand-pat strategy flies in the face of history. Courts never change their minds unless they are invited to. In 1995, the Ohio General Assembly passed a bill banning partial-birth abortions. A federal court struck down the law. But Nebraska did not stand pat. It passed its own prohibition of partial-birth abortions. In 2000, the Supreme Court voided the Nebraska statute. But Congress did not stand pat. In 2003, Congress passed a federal ban on partial-birth abortions and invited the Court to change its mind. The Court did, and partial-birth abortions are now against the law.

Some years back, Akron passed a law requiring informed consent, a waiting period, and parental consent for minors seeking an abortion. The Supreme Court declared Akron’s law unconstitutional. But other states did not stop inviting the Court to change its mind. And it did. Now Ohio and most states have laws requiring informed consent, a waiting period, and parental consent or notification.

Restrictions on abortion used to have to pass a strict scrutiny test. Now, they have to pass an undue burden test. It used to be that courts would routinely strike down an entire statute limiting abortion if they could find one part of it that was objectionable. That has changed. It used to be that pro-life protesters could be sued under the Racketeer Influenced and Corrupt Organizations Act (RICO). Not now.

The heartbeat bills may not make it through the courts on the first round, but they will change the terms of the debate in the Supreme Court’s own language. And that is how progress is made.

David Forte, a new contributor to The Catholic Thing, is Professor of Law at Cleveland State University. He was one of the drafters of Ohio’s original law banning partial birth abortions.
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