Heartbeat bills find few friends in court

Judges last week blocked two state laws protecting babies with detectable heartbeats.

Tennessee Gov. Bill Lee, a Republican, on June 13 signed what he called “arguably the most conservative, pro-life piece of legislation in the country.” The “heartbeat law” would effectively protect babies from abortion after six weeks of gestation. U.S. District Judge William Campbell blocked the law almost immediately on Friday pending a hearing. He said he was “bound by the Supreme Court holdings prohibiting undue burdens on the availability of pre-viability abortions.”

The same day, a federal judge permanently blocked a similar law that Georgia Gov. Brian Kemp signed last year. The state has never enforced its heartbeat law since Judge Steve Jones temporarily halted it in October after several abortion providers and a pro-abortion group sued. Kemp, also a Republican, promised to appeal.

At least eight states last year passed either a heartbeat bill or other legislation that included stronger protections for babies. So far, none of those states are enforcing the laws, which remain held up by challenges in lower courts. Pro-life lawmakers saw the bills as a way to push the Supreme Court to reconsider Roe v. Wade, though that strategy has received mixed reactions from pro-life groups.

Roe v. Wade legalized abortion nationwide in 1973, but many pro-life experts have their eye on overturning a later decision from 1992. Planned Parenthood v. Casey established a baby’s viability outside the womb as the legal cutoff for an abortion. States could protect unborn infants after 20-24 weeks of gestation, but any regulation before that point likely would not survive a lawsuit. Heartbeat bills directly challenge that line by pushing protections back to as early as six to eight weeks of pregnancy and offering an alternative point of fetal growth besides viability.

“This first trimester is sort of abortion sacrosanct,” said Katie Glenn, government affairs counsel for Americans United for Life. “Heartbeat has the dual purpose of cutting through that and directly challenging Casey and also being tied to a biological benchmark of development.”

Glenn said the Supreme Court may wait longer than expected to take up a heartbeat case since lower court judges have almost uniformly ruled against the laws.

Some pro-life advocates worry the timing may not be right for such a Supreme Court challenge. U.S. Chief Justice John Roberts, in particular, concerned many pro-lifers when he sided with the liberal wing of the court last month to overturn Louisiana’s pro-life protections in June Medical Services v. Russo. It wouldn’t be the first time conservative justices have upended the movement’s expectations. When Casey arrived at the court during the Bush administration, some pro-life groups thought the justices were ready to overturn Roe. “Of course, that was a huge disappointment that’s led to another 25 years of abortions in this country,” Glenn said.

Many of the pro-life legislative packages—including Tennessee’s heartbeat bill— also protect babies from abortion due to their sex, race, or a diagnosis of Down syndrome. Those and other smaller-scale protections don’t receive as much attention but play an important role in saving lives and supporting the legal side of the pro-life movement. Supreme Court Justice Clarence Thomas, in particular, has signaled interest in such prenatal nondiscrimination laws.

“It looks like maybe he would see that as the first chip away at Casey,” Glenn said.

The push behind the heartbeat movement, she said, shows that local officials in many states support stronger protections for babies. When the Iowa legislature recently passed new protections for the unborn, pro-abortion groups sued before Gov. Kim Reynolds even had a chance to sign them into law. Glenn sees that as a clear act of pressure, but officials keep pushing forward: “We’ve seen fearless leaders stand up to that and say, ‘This is important enough.’”