'Heartbeat Bills' Are the Present and Future of Abortion Restrictions

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Early Tuesday morning, Georgia Governor Brian Kemp signed a measure into law that bans abortion at the point when “embryonic or fetal cardiac activity” is detectable on an ultrasound, which can happen as early as five or six weeks into a pregnancy. As has been pointed out in much of the coverage of the bill, this is often much sooner than most people will even realize they are pregnant, and effectively amounts to a total ban on the procedure. But in addition to its restriction on abortion, HB 481, the Living Infants Fairness and Equality (LIFE) Act, also includes provisions that codify a fetus as a “natural person” entitled to “full legal recognition” under state law. If the measure goes into effect as written, an embryo or fetus will, among other things, be counted for “population based determinations” and eligible for child support.

The ban is cruel in its design and impractical in its implementation (it would likely be difficult for a person who doesn’t know they are pregnant to note that pregnancy on a population survey), but that was the point. Abortion restrictions are about eroding safe access to the procedure, but they are also about re-inscribing a certain kind of social order. They are material and they are a message: Your body is not yours.

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“Our job is to do what is right, not what is easy,” Kemp said at the signing ceremony for the bill. “We are called to be strong and courageous, and we will not back down.” He was referencing the pending legal challenges the bill will face, which was of course also the point.

The American Civil Liberties Union has vowed to fight the measure in court, which is precisely what happened when Ohio enacted a nearly identical ban last month, and when Kentucky and Mississippi did the same thing in March. In the span of just a few months, these four states have sent out a version of the same test flare. Whereas the messaging of the bill used to, under different political circumstances, be its primary function, things are changing. Now, a state like Georgia or Ohio may have reason to believe there is a path, if not now then in the very near future, to a Supreme Court that may take up the case as a means to undo Roe v. Wade.

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“Now is our time,” Michael Gonidakis, president of the Ohio Right to Life, told the New York Times in April. “This is the best court we’ve had in my lifetime, in my parents’ lifetime.” Gonidakis was discussing Ohio Right to Life’s recent decision to endorse the state’s six-week ban, which his organization had avoided in the past because such a measure would be, the conventional wisdom went, a political nonstarter. And while that had never stopped the Ohio legislature from introducing these bills—a so-called “heartbeat” ban was introduced in 2011, 2013, 2015, and 2016—the Ohio Right to Life, in an effort to be serious-minded, had always declined to endorse them. When John Kasich, Ohio’s former governor who was fiercely anti-abortion, vetoed these bills as they reached his desk, he invoked Ohio Right to Life’s suspicion of them. The bill would be counterproductive, he argued, and potentially compromise existing anti-abortion law.

But that political calculus has shifted with President Trump in the White House and two new conservative justices, with a possible third on the way, on the Supreme Court. “It’s a pretty bold step, I’ll be honest,” William Seitz, an Ohio Republican who voted for the six-week ban, told the Times. “But at least there is some chance that this would provide an opportunity to either further limit Roe, or perhaps jettison it entirely.”

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If Ohio fails at the end, maybe Georgia will succeed. If Georgia fails, then maybe Tennessee, Missouri, South Carolina, Florida, Texas, Louisiana, and West Virginia—which are each considering their own version of a six-week ban—will get further along in the process. If a six-week ban isn’t the answer to the question of how to crack the Supreme Court, then maybe a recent proposal out of Alabama, which bans abortion outright, will stand a better chance.

It’s a moment of opportunity. Where some version of caution may have previously existed, there are just wide open skies for the lawmakers and movements seeking to criminalize abortion. “We haven’t won but we are winning,” Gonidakis of Ohio Right to Life told the Times, looking to the legal challenges ahead of him. “We are winning a battle that we always used to lose.”

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