This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article is an exhaustive analysis of the Heartbeat Bill and its related aspects.
Table of Contents
Introduction
Across the country of the United States, the introduction of a restrictive Abortion Bill in the form of a “fetal heartbeat bill” had been coming up in the news time and again. Very recently, Texas passed this highly controversial Bill and joined the other states that have similar abortion legislations in the Bible Belt of the U.S which consists of states in the southern region with socially conservative people and high church attendance compared to the nation’s average. The law is to come into effect in September 2021 if it is not stopped by the Court, however, what remains remarkable for this law is that this Bill was introduced shortly after the Supreme Court announced the review of Mississippi’s bid to ban most abortions after 15 weeks, opening the door for an overturn, or narrowing of, Roe v Wade – the Supreme Court’s 1973 landmark ruling that guarantees a woman’s right to end her pregnancy.
Legislative history
Back in 2011, Ohio became the first state to have passed the Heartbeat Bill followed by North Dakota in 2013. However, these bills could not officially come into effect and in cases where they managed to do so, they were considered among the most stringent laws of the country. Where in the law was blocked by the courts and declared unconstitutional, in other places like Georgia passed its Heartbeat Bill and turned it into law. As of July 2021, except for the Texas Bill all other state laws are not in effect pursuant to the Court’s intervention.
Roe v. Wade
Women’s right to an abortion was discussed at length by the Supreme Court in the 1973 lawsuit of Roe v. Wade. Jane Roe was an unmarried pregnant woman who had filed a suit to challenge the Texas abortion laws. Though women’s right to privacy does not involve abortion since right to privacy arises from the Due Process Clause of the Fourteenth Amendment, it was recognized by the Court in Board of Regents v. Roth 1891 that the meaning and interpretation of the term liberty has to be broad for the constitution of free people. Thus, in the present case, the Court extended the right to privacy to include a woman’s control over pregnancy. To reach a conclusion, the Court created a framework to balance the state’s interests with women’s privacy rights.
It acknowledged that the rights of pregnant women might come in conflict with the rights of the state to protect potential human life, the Court divided pregnancy into three 12-week trimesters to define the rights of the parties involved:
- The Court held that a state cannot regulate abortion while a pregnant woman is in her first trimester, beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
- A state’s intervention may be allowed to regulate abortion if the regulations are reasonably related to the health of the pregnant woman while she is in her second trimester.
- The state’s interest to protect a potential human life will outweigh the woman’s right to privacy when she is in her third trimester. To that end, the state may prohibit abortions unless it becomes necessary to do so considering the health conditions of the mother.
The judgment in this case substantially did not have an impact on the number of abortions that took place later in the U.S, rather many opponents tried to introduce even stricter abortion laws. This decision was revisited in Planned Parenthood v. Casey in 1992, and held its ground on privacy rights being tied to abortion. The ban on abortion continued to remain unconstitutional as per this case which upheld a woman’s right to choose abortion, however, it changed the framework as established in Roe creating a standard based on fetal viability (the woman could choose abortion before viability).
Whole Woman’s Health v. Hellerstedt
In 2016, following the case of Whole Woman’s Health v. Hellerstedt, which was based on a 2013 law passed in Texas that placed certain restrictions on abortion clinics working in the state like the abortion providers had to have “admitting privileges” at a hospital no more than 30 miles away. This led to a decrease in the number of clinics in Texas from 42 to just 19 but the Supreme Court found that the states cannot place such restrictions on the clinics because they create an undue burden for the women in such circumstances.
As a result of these decisions, even today many restrictions are imposed on women seeking abortion like the requirements of parents consent or involvement of a judge in their decision. Others have requirements of long waiting periods between the time a woman first visits the clinic and the time of carrying out the actual procedure. Thus many women have to travel further away to get the procedure done across the state boundaries.
The U.S Court is currently hearing the Mississippi case of Dobbs v. Jackson Women’s Health Organization (2021) which is regarding challenging the constitutionality of the 2018 Act of Mississippi’s Gestational Age that bans abortions after 15 weeks except for emergency cases. It is to be decided whether a fetus is viable outside the womb after 15 weeks. The Court has to review whether “all pre-viability prohibitions on elective abortions are unconstitutional.”
The Court might choose to uphold the decision in Wade’s case or might overturn it. If the case was to be overruled or narrowed down, many states might come up with even more extreme laws on abortion. The states have never been able to pass a law that would outright ban abortion before fetus viability. If the Mississippi law holds up in the Court, it would limit access to abortion facilities in the state. As of now, many abortion rights advocates and activists are preparing to challenge the Texas Bill which will be going into effect in September.
The Heartbeat Bill
This Bill particularly aims to make abortion illegal once the heartbeat of the fetus is detected. It bans abortions as early as six weeks. However, what sets this law apart from other similar legislation is that it is not publicly enforceable. It allows any and every person to initiate a civil action against any person who performs, induces, abets, or aids an abortion.
Salient features
“Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” said Governor Greg Abbott before signing the new law banning abortion to take place beyond 6 weeks when a fetal heartbeat is detected. It aims to ensure and protect the life of every unborn child with a heartbeat. Currently, the law of Texas allows abortions up to 20 weeks unless there is a severe abnormality or life-threatening medical condition:
- It acknowledges that the state of Texas has never repealed any statutes prohibiting and criminalizing abortion that was enacted before the decision in Roe v. Wade. It amended the Health and Safety Code by adding another subchapter. This subchapter goes on to define terms such as fetal heartbeat, gestational age, unborn child, pregnancy, etc.
- The new law does not allow any exceptions even for the extreme cases of unwanted pregnancies arising from rape or incest. This provides the patients the time of only 14 days to realize their regular menstrual cycle being missed and confirm the pregnancy, make up their mind for abortion, find a suitable clinic and fulfil the formalities. Ideally, people need to visit 24 hours prior to their scheduled abortion to get an ultrasound done and receive mandatory state counselling. To add to that, people need to be financially sound to be able to afford the procedure as abortion care is not covered under the insurance in Texas.
- Under Section 3 of the Bill, the Amendment is introduced under chapter 171, Health and Safety Code. This includes definitions for detecting fetal heartbeat. It states the legislative finds based on contemporary medical research regarding the fetal cardiac activity. If at all the physicians fail to comply with the provisions of the Act, they have to maintain a record of justifiable reasons for doing so as per the allowance given by the Act itself.
- The Act imposes limitations on public enforcement, i.e it can only be enforced through private civil enforcement actions. It classifies abortion under a civil violation and not a criminal ban where enforcement can be brought by any person except that of an officer, state employee, or local governmental entity of the state. This could even lead to the shutting down of various abortion clinics from the fear of facing prosecution.
- Further, if a claimant prevails in an action brought, the Court can award injunctive relief, statutory damages of an amount not less than $10,000, and costs of attorney’s fees. The defendant cannot plead defence by stating reasons of ignorance or mistake of law, on the belief that the section is unconstitutional, reliance on any court decision overruled or not during the commission of the act, reliance on any state or federal court’s decision which is not binding on the trial court, consent of the unborn child’s mother, any claim that would violate the constitutional rights of a third party. It also prohibits the state, a state official, a district or county attorney to intervene in an action initiated under this section.
- This has been called a clever and unique law by a law professor at South Texas College of Law Houston according to the report.
- Where generally the government takes the responsibility for enforcing the health-related measures, the new Texas law empowers private citizens to sue abortion providers. A private citizen could be anyone, even the one who is not related to the individual seeking abortion can sue in the civil court for the violation of the provision.
Procedural issues
The usual root for challenging the abortion restrictions (planned parenthood/doctors/ healthcare facilities involved) brings a pre-enforcement of Section 1983 of Title 42 of the United States Code which is the Ex parte Young action initiated against the governor, AG, Secretary of Health and Human Services, or other public officials for a declaratory judgment and injunction prohibiting enforcement–is not available. It does not hold any government officials responsible for the enforcement of the law as there is no specified executive officer to initiate the action. This could be framed by the courts in two ways, either a lack of standing (since no specific officer responsible for enforcing the law and the injury is traceable or redressable by an injunction) or with sovereign immunity (since the exceptions of Section 1983 not satisfied) or that specific officer is not violating any substantive right. Herein the legislature which has enacted the law is immune from the suit as it does not violate anyone’s rights.
The other thing is that all the enforcement actions have to be taken in the state’s court because that law is invalid on the basis of any federal defence that is not applicable for removal. The way to go about it would be if the care providers shift their principal place of businesses to outside Texas, then it would create multiple jurisdictions. However, once the case comes into the federal court, the defendant then can dismiss it for the lack of standing.
The law indirectly attempts to impose limitations on the defendant’s right to assert constitutional rights of women to challenge the abortion law as an affirmative defence. This limits the third party standing and codifies the requirements of the test of the constitutionality of the rights. In addition to this, Section 4 of the Bill states that an attorney who fails to successfully challenge the validity of the laws regulating the ban of abortion would then be liable for the defendant’s attorney’s fees, which cannot be applied in the federal court.
The science and the law
According to a media report, which has inputs from the ob-gyn from American College of Obstetricians and Gynecologists and an ob-gyn from UC San Francisco and director of research in obstetrics and gynaecology at Zuckerberg San Francisco General Hospital, this Bill and its similar counterparts state that fetal heartbeat helps in predicting whether the pregnancy will boar a living baby or not. The model legislation that is referred to by the various states uses the fetal cardiac activity as an indicator of an unborn human individual-specific the moment when the structure becomes alive which is a well-established detector, however, there is more to it.
What we first need to determine is the meaning of the phrase of the unborn human individual whether a 3- to 4-millimeter-long, partially organized blob of cells is a human individual or not. Secondly, the issue lies in understanding the heartbeat. At a stage as early as six weeks, the neurological system along with the cardiovascular system is rather immature. The heartbeat that is heard of at the stage of the gestation period (6 weeks) is a group of cells with electrical activity/ a cluster of pulsing cells which is in no way related to any kind of cardiovascular system as it is not sufficient enough to support viability. Another such term is viability which clinicians understand to be a time that looks normal for the continuance of pregnancy.
The science of it all is far beyond how the use of the terms in legislation has been portrayed. That using the term heartbeat is effective in playing with people’s emotions however, they also have the power to ban abortions when people often are not even aware if they are pregnant in the 6th week. This could have varied consequences with potentially serious health risks. Even after the detection of fetal cardiac activity, a woman might miscarry which then according to the law would lead her to prosecution and in turn prevent her from seeking prenatal medical care.
Controversy
- The major issue with the law is that often many women do not even realize that they are pregnant during the time span of six weeks. Thus the law acts as a de facto ban on all abortion cases as by the time they realize it will already be too late.
- These laws are inconsistent according to the Center for Reproductive Rights. It is a global legal advocacy organization that works to make reproductive freedom a fundamental human right and aims to advance reproductive rights (such as abortion).
- At a stage as early as six weeks, the embryo is not a fully developed fetus and does not have a heart. The phenomenon of becoming a fetus only happens in the eleventh week of pregnancy. However, some electrical activity that disguises as a heartbeat of the fetus can be heard in the early stages, which is around six weeks.
Consequences
If these laws are allowed to be made effective, more people would find ways to end their pregnancies at home due to the fear of prosecution. Resourceful people can always manage to find their ways, while others will be forced to take the unwanted responsibility which potentially has greater health risks than abortion. They will have to face the socio-economic issues that come with unwanted pregnancies. Further self-managed abortions though with the right knowledge, resources and methods can be a safe option, it has its legal risks. People have been arrested and incarcerated earlier for ending their pregnancies going beyond the legal formal requirement of the law.
Effect of similar laws in other states
Alabama
In March 2014, House Bill 490 was passed which prohibited abortions after detecting a heartbeat. Though they became the first state to pass such a Bill, the Bill later died in the committee itself. Again, in 2019, and even more, extreme heartbeat law was passed altogether banning abortions at every stage and prosecuting the providers, and criminalizing the procedure except in health emergency cases.
Arkansas
Herein, the Heartbeat Bill banned abortions after twelve weeks. It was introduced and passed in 2013, which later on was issued an injunctive relief by a federal judge and finally was struck down for being unconstitutional.
Florida
In 2019, two identical heartbeat Bills were filed. One was HB 235 along with a companion Bill SB 792. These Bills criminalized the procedure of the doctor to perform an abortion after the detection of the heartbeat as a third-degree felony unless it was an exception for a medical emergency. Later both the Bills died in the committee.
Georgia
In 2015, two heartbeat Bills were filed in the Georgia General Assembly. The Georgia House Bill 481 was passed in the House of Representatives and the Senate Committee and then by the entire state Senate in 2019. This has the effect of bringing into existence one of the most strict abortion laws in the country and prohibits abortions after detection of a heartbeat within six weeks.
Iowa
In 2018, an Abortion Bill was signed into law which was then declared to be in violation of the state’s Constitution and therefore its enforcement was prohibited with a permanent injunction.
Kansas
A similar abortion ban Bill was introduced in 2013 known as the House Bill 2324, however, despite many attempts for considering the Bill, it died in committee in 2014.
Kentucky
Two Bills banning abortion were introduced in Kentucky General Assembly in 2019 which was passed but later on was challenged by the American Civil Liberties Union (ACLU) due to which its enforcement was blocked until final order from the district court. Though many attempts were made by various representatives to introduce the Bill and overturn the decision in Roe v. Wade, but to no avail. Previous Bills such as HB 132 of 2014, HB100 of 2018, all died in the committee itself.
Maryland
Two Bills had been filed in 2019 in the Maryland House of Delegates under HB 933 and HB 978 which was entitled “Keep Our Hearts Beating Act”.
Missouri
In 2019, two Bills were filed as SB 129 which remain pending, and HB 126 which completed its pubic hearing and was passed and signed. The Bill bans abortions after 8 weeks without any exceptions.
North Dakota
The Bill HB 1456 was signed in 2013 in an attempt to explore the application of the Roe v. Wade decision. It was found to be unconstitutional and therefore was quickly blacked. Later a lawsuit was filed by the Centre for Reproductive Rights representing the only abortion clinic in North Dakota. The Bill was further blocked by the 8th U.S. Circuit Court of Appeals, when the case appealed to the Supreme Court, it was denied a writ of certiorari and upheld the decision of the 8th Circuit.
Ohio
Ohio introduced its heartbeat Bill in 2011 as HB 125 and was shelved by the Republican majority Senate. A companion law was also passed as HB 248 that would criminalize the doctors who do not conduct tests for a fetal heartbeat and would be a first-degree misdemeanour with 6 months in jail for the first violation and a fourth-degree felony with 18 months in jail, for subsequent violations. Again in 2019, Ohio General Assembly had 2 heartbeat Bills introduced before the 133rd session of the assembly. The Bill was passed, changes were ratified, and was signed into law. However, its implementation was blocked temporarily just a few days before the Bill was to take effect.
Oklahoma
It has its fetal heartbeat Bill SB 1274 in effect since November 2012. It requires the abortion provider to offer the woman an opportunity to hear the heartbeat of the fetus before taking the final decision of ending the pregnancy and is applicable to a fetus that is 8 weeks old.
South Carolina
The Bill that was entitled “Fetal Heartbeat Protection from Abortion Act“, was introduced in the House Judiciary Committee in 2018. The law had an exception for excluding the cases of rape, incest, and medical emergencies of the life of the mother at risk. Previously similar legislation had been passed, however, this one after being signed into law in 2021 was blocked by the U.S District Judge following the lawsuit filed by Planned Parenthood and Greenville Women’s Clinic.
Tennessee
In 2019, two fetal heartbeat Bills were filed and were passed at all levels before the Public Health Committee and the full committee.
Wyoming
The Bill was introduced as HB 97 in 2013 and was struck down by the house committee.
Conclusion
The issue even today remains a cause of concern and a hot topic for presidential debates across the country. States have continued to pass stringent abortion laws which have time and again been challenged in court. The question that remains hanging is whether the Texas Bill will manage to come into effect and the decision in Roe v. Wade will be overturned or once again the Bill will be declared unconstitutional upon adjudication by the Court. There are attempts by the various activists and advocates to oppose the Bill with their full might before it comes into effect, however, that is left upon time to tell.
References
- https://fredericksburg.com/opinion/commentary-texas-heartbeat-abortion-law-is-a-game-changer/article_c1e64a16-4d2e-5500-80df-3bf098963ca7.html
- https://www.thedailybeast.com/texas-passes-heartbeat-bill-that-would-create-anti-abortion-vigilantes
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
