Fetal Heartbeat and the Judicial Imagination

The news came in by phone from a friend as I was driving back from a brief respite at the shore, and so I was probably primed to hear news that seemed upbeat. A panel of three judges in the 8th Federal Circuit had dealt with a bill in North Dakota that barred abortions after there was “detectable heartbeat” in the unborn child. (MKB Management v. Stenehjam)

This has been one of the most promising pro-life initiatives. One survey showed that 62 percent of the public thought that abortions shouldn’t be allowed after the evidence of a beating heart. What most people don’t know is just how early that heartbeat can now be detected. With the Doppler device of echograms, there have been readings as early as 6-1/2 to 7 or 8 weeks. And I’m told that by ultrasound, with a vaginal sonogram, the heartbeat can be heard as early as 5 weeks after the last menstrual per­­­iod, or about 22 days after conception. Which is to say: around the time a woman discovers that she is pregnant.

And yet, the heartbeat itself does not mark the advent of the human life. It is simply part of the development of a human life already in being, generating and integrating its own growth. Nevertheless, if this test of a beating heart offered a new limit on abortions . . . it would be a grand understatement to say that it would have the most dramatic effect on the practice of abortion in this country.

The three federal judges who took part in this case had all been appointed by George W. Bush. And they took the occasion to remark that “good reasons exist for the [Supreme] Court to reevaluate its jurisprudence.” They ran through an accumulating list of the adverse effects of abortion on the women who had undergone the surgery: the connection to breast cancer, chronic bladder infections, cervical cancer, early hysterectomy, to say nothing of the onset of serious depression in many cases.

But my friend, conveying the news, didn’t quite get the full story. These Bush appointees, with their evident pro-life sympathies, were making an earnest plea to reconsider the jurisprudence on abortion; but they were doing that after they had explained that the reigning doctrines of the Court compelled them now to strike down this bill barring abortions after the detection of a fetal heartbeat. In that judgment, I’m afraid that these men, of fine repute, revealed the cardinal points of emptiness in what passes these days as “conservative jurisprudence.”

The stumbling block was the matter of “viability.” The Supreme Court has taken viability to occur around 24 weeks of pregnancy. And yet, not so long ago, that figure was thought to be around 28 weeks. The conservative judges here had the wit to ask, “How is it consistent . . . that the same fetus would be deserving of protection in one year but undeserving of state protection in another . . .?”


The Supreme Court, they said, had “tied a state’s interest in unborn children to developments in obstetrics not to developments in the unborn.” Or to put it another way: The Court had made the definition of a human being hinge on the current state of the art in incubator science.

At this point, the judges had hold of a key argument – but evidently had little sense of what to do with it. They insisted that the rule set down by the Supreme Court must be controlling. But clearly, that rule of twenty-four weeks does not arise from anything in the text of the Constitution; nor does it necessarily spring from the logic of a “right to abortion.” And it clearly finds no support in the textbooks on embryology. On what ground then could the judges be compelled to give deference to that standard, which has no juridical or scientific standing?

And in fact, on the matter of “viability,” David Forte has pointed out that the fetal heartbeat is one of the strongest predictors of viability: “absent some external, unexpected development, once a fetus has reached the stage of five or six weeks and [the] heart has begun to function, it is almost certain that he or she will continue to develop to full term.”

In the litigation over Obamacare, liberal judges were willing to invoke the purposes of the law even when they ran counter to the words in the statute. The conservative judges here could have invoked the rule on viability, and yet upheld the statute in North Dakota as a measure that truly merited the willingness of the Court to consider again the evidence and reasoning behind its position on viability.

The judges could have done more than enter a plea to the Court to revisit its jurisprudence; they could have compelled the Court to do that. For surely, another appellate court in another circuit, would strike down a comparable law. That would create a split among the circuits and compel the Supreme Court to take up the issue.

My hunch is that the conservative judges came through their hearings on confirmation pledging to respect the rulings of the Supreme Court on abortion, and abjuring the temptation to become – gasp! – activists! That is to say, they pledged to purge from themselves the moral imagination and nerve shown every day even by their dimmest liberal counterparts, and even forgo the more demanding reason they practice in other parts of their lives.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.