Reason Roundup

'Heartbeat Bills' Banning Almost All Abortions Are Back

Plus: Parsing competing paid-leave proposals, wisdom from Justin Amash, and Pete Buttigieg on Chick-fil-A.


2019 so far has seen a flurry of states pass or consider so-called "fetal heartbeat laws." They require women who want to end a pregnancy to decide on, schedule, and carry it out within about two weeks of missing their period. After that, abortion would be off-limits and come with criminal penalties for those who disobey.

These measures—passed recently by legislatures in Iowa, Kentucky, Mississippi, and Ohio and considered in several others—make abortion illegal if in-utero cardiac activity can be detected. With recent technological advances, that's around 5 1/2 to six weeks pregnancy (or, to put it another way, about one month post-conception and two weeks post-implantation in the uterus), when the embryo is somewhere between the size of an apple seed and a small pea.

Mississippi's governor last week approved a law to "prohibit an abortion of an unborn human individual with a detectable heartbeat." It includes exceptions only if the mother's life is endangered or her health is at extreme risk.

A Georgia bill (H.B. 481) includes an exception only when a woman's life is in danger. It also includes language declaring all fertilized eggs to be citizens with equal rights to their counterparts with fully formed bodies and the ability to exist outside another human being. H.B. 481 passed the Senate last Friday, with changes that must be approved by the House. Republican Gov. Brian Kemp said he will sign it.

Jim Galloway at the Atlanta Journal-Constitution notes that neither the words fetus nor embryo appear in the heartbeat bill. "There is only the 'unborn child,' who would receive 'full legal recognition' under Georgia law as 'a natural person.'" And while "some consequences [of that] have been considered," many have not:

Under HB 481, parents would be able to consider the unborn as dependents, and thus deductible when figuring out how much state income tax they owe. Fathers, to a limited extent, would have to pony up child support, beginning six weeks after conception. State censuses, though not federal ones, would include womb counts.

The 14th Amendment to the U.S. Constitution established birthright citizenship in the United States. HB 481 is silent on whether conception or six weeks in utero might confer citizenship, at least on a state level.

In an impassioned statehouse speech last Friday, state Sen. Jen Jordan (D-Atlanta) chastised Republican colleagues who had introduced the bill. "I didn't run for office to fight the culture wars around choice," Jordan said in a speech on the Senate floor. "Our state currently has some of the most restrictive abortion laws in this country, yet abortion is safe and legal and this uneasy truce that we've had on this issue in recent years should have held." But the new law would "effectively ban all abortions—before an embryo or fetus is viable outside of a uterus and before a woman or girl knows that she is pregnant."

Jordan also criticized the science behind the heartbeat rationale:

Counter to all medical experts, the law also attempts to establish that a zygote, an embryo, a fertilized egg at 5.5 weeks has a beating heart. This is simply not true. At the earliest stages of pregnancy, certain embryonic cardiac activity can be detected with a trans-vaginal ultrasound. I don't think any of the men that spoke today have ever had a transvaginal ultrasound. I have. And it is not pleasant.

Every physician has said that the fetal cardiac activity present early in pregnancies is not a beating heart—and no matter how many times you say it, no matter what you call this bill—it does not make it so.

Conservatives in state legislatures have been at this a while. And each time, judges tell them that pre-viability abortion bans are illegal. Under Supreme Court precedent set in Roe v. Wade and affirmed in subsequent decisions, abortion must be legal until the point of fetal viability outside the womb (about 24 weeks, though this is shifting slightly with advancing technology).

So far this year, heartbeat bills passed by lawmakers in Kentucky and in Iowa have been halted by courts. Iowa lawmakers passed their bill last year; it was blocked by a judge in January. The judge cited the Iowa Supreme Court, which held in a case last year that "a woman's right to decide whether to terminate a pregnancy is a fundamental right under the Iowa Constitution."

Politicians must know the measures won't pass legal muster. But they still get credit from constituents for trying, and the extremely slim chance that some federal judge may decide differently—which would provide an opportunity to take the matter to the Supreme Court.

This was explicitly the goal of those pushing an unconstitutional Ohio abortion ban that passed the state's legislature in December. It was vetoed by outgoing Gov. John Kasich, who also vetoed similar legislation in 2016. But new Gov. Mike Dewine said he'll "absolutely" sign similar legislation into law if it passes again. And earlier this month, the state's Senate did just that, passing Senate Bill 23.

Only Tennessee senators seem to have any sense here. After a heartbeat bill passed the state's House of Representatives, senators have been declining to take up the bill. They're still backing another anti-abortion measure, this one saying that abortion would automatically be banned in Tennessee if SCOTUS overturns Roe. But Lt. Gov. Randy McNally told reporters: "We're trying to construct a law that won't get us into court on the losing side."

Missouri politicians, meanwhile, are going for both a "heartbeat bill" and another measure declaring abortion totally banned if Roe is struck down. Legislatures in Florida and South Carolina are also considering heartbeat bills.


Kumbaya, my friends:


Economist Dan Mitchell looks at the implications of federal paid leave programs. "I've already explained why the federal government shouldn't have a policy on parental leave, but the topic isn't going away so let's look at the issue again," Mitchell writes. "The first thing to realize is that the fight over 'parental leave' involves several competing options." These are:

  • A plan from the left to make parental leave an entitlement financed by payroll taxes.
  • A plan from the left to mandate that employers provide paid leave.
  • The libertarian notion that it's none of the government's business.

Whole thing here.