The Test of Heartbeats for Judges – and other Former Fetuses

It seems to be taken now as a truth so obvious that it hardly needs to be stated:  that for the next two years, at least, there is no way in which John Roberts would provide the fifth vote in a decision to overrule Roe v. Wade. With the  White House and Congress controlled now by a party of the Left even more aggressive, Roberts surely knows that any decision to sweep away Roe in a single stroke is likely to be taken as a casus belli and loose the dogs of war.

Democratic zealots in Congress (which is to say, all but five of them)  would take this as the decisive moment for removing the filibuster and packing the Supreme Court with new judges.  Senator Sheldon Whitehouse of Rhode Island has already played a game of trying to intimidate the Chief Justice with these not so veiled threats. And it appears to some observers that those threats have indeed made John Roberts – shall we say? – more cautious.

In any case, it has been evident for almost 30 years now that the conservatives on the Court have thought it deeply imprudent to overturn Roe in one frontal move.  And so Justice Kennedy would add the critical vote to preserve Roe v. Wade in 1992, but he would vote later to sustain the federal bill to bar “partial birth abortion.”

With the addition of John Roberts and Sam Alito, the Court reversed its earlier decision on that issue.  And with that move it seemed to be announcing that: we are in business now, open to sustaining a host of measures, emanating from the States, and putting restrictions on abortion that would strike the public as reasonable.

That is another path, called the “art of overruling”:  a series of small steps set in train, and with each step the public could readily see why it is reasonable to bar abortions, say, when the child is of the “wrong” sex or color, or when the fetus shows a beating heart.

After the public comes to agree, step by step, that the restraints are eminently reasonable, it would be all that much easier for the Court to take the final step and put aside the shell of Roe that remains.

Eleven states have already banned abortions at the time when a beating heart can be detected, and Texas may soon be the twelfth.  As one would expect, all of these bills have already been enjoined by federal courts.

Which is why National-Right-to Life surprised our friends in Ohio years ago when it opposed the heartbeat bill in that State.  The fear was precisely that lower courts would strike down these bills, and make them seem altogether implausible. But now, thanks to the Trump Administration, there are more young judges at the district and appellate level who may be quite willing to sustain these bills and open the path to the High Court.


And that may be why National Right to Life has shifted its position.  It is one thing to overturn Roe and conjure up, in a stroke, all the fears of women being suddenly dispossessed of what they take to be an anchor of their personal freedom.  But it is quite another when the Democrats are put in the position of defending the killing of an unborn child with a beating heart.

In the surveys I’ve seen, there is massive support in the country for barring the aborting of a child with a beating heart. What most of the public may not know is just how early that beating heart can be detected.  With vaginal ultrasound, the fetal heartbeat can be heard as early as 5-1/2 to 6 weeks after conception, which is to say, about the time that a woman comes to learn that she is pregnant.

To pass the heartbeat bill would be virtually to bar all abortions in the country – and that is exactly how the bill would be portrayed in alarms spread through the media.

In a world hemmed in by the inverted reasoning of the courts, the heartbeat bill may offer something that stays within the guidelines set down by the judges, even though the bill rests on layers of fallacies.

Fetal heartbeats can be detected earlier than they could be in the 1970s, and yet, as Daniel Robinson once observed, there is something deeply implausible in letting the definition of human life “depend on the current state of the art in amplifier science.”

For the deeper truth is that the heartbeat is just one more feature made manifest in a nascent being that is already powering and integrating its own growth.  We might as aptly choose as the telling markers the appearance of fingers and toes (at 8 weeks), or the local reflexes of swallowing and squinting (at 9 or 10 weeks).

The plain fact is that there is something in the womb quite alive and growing, and if that were not the case, an abortion would be no more relevant than a tonsillectomy.

In 1989, in the Webster case, the Court allowed that the States could start protecting unborn children even before “viability.”  And the evidence so far suggests that the presence of a beating heart is already a telling test of viability, for the probabilities may be as high as 90 percent that the detection of a beating heart marks a child “viable” enough to come to birth.

But even the test of viability made no coherent moral sense:  We have never thought that people lose their claim to live when they become dependent on the care of others, or that they cease being bearers of “rights” when they become notably weak.

The heartbeat bill is shaped to that narrow and contrived set of things that may be said in courts. But it has been grasped in trying again to get the attention of the American people to the kind of killing that they have failed to notice, or treated with indifference.


*Image: Annunciation by Leonardo da Vinci, c. 1472 [Uffizi Gallery, Florence, Italy]

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.