North Dakota state lawmakers passed the first “heartbeat” bill in 2013 — a law that banned abortions after the detection of a fetal heartbeat, which can happen as early as six weeks, before a woman even knows she is pregnant.
Lower courts ruled it unconstitutional, based on the landmark U.S. Supreme Court ruling in Roe v. Wade, and the high court refused to hear the appeal.
Iowa passed a similar bill last year, and a state judge declared it unconstitutional, too.
Despite this precedent, more than a dozen other state legislatures have introduced their own “heartbeat bills” this year. Governors in three states — Mississippi, Kentucky and, most recently, Ohio — have signed six-week bans into law. Soon, the governor of Georgia is expected to make his state’s heartbeat bill law, too.
All are facing, or will face, legal challenges from organizations that support abortion rights.
They are not deterred. This was the plan all along.
“We know that the pro-abortion forces are going to sue, and that’s part of the process,” said Lori Viars, an antiabortion activist in Ohio, where the six-week ban she spent years promoting was signed into law Wednesday. “We want this bill to go to the Supreme Court. It was written for this purpose.”
Though lawmakers have been introducing six-week abortion bans for years, it has taken nearly a decade of failed attempts for the movement to build the kind of momentum it has seen in the early months of 2019. Advocates on both sides of the abortion debate are seriously questioning the security of Roe — because mainstream antiabortion groups are adopting more radical positions and state abortion restrictions are reaching critical mass, because Donald Trump is president and because in two years he has appointed two conservative justices, Neil M. Gorsuch and Brett M. Kavanaugh, to the Supreme Court.
“The shift in the Supreme Court opened these flood gates,” said Elizabeth Nash, senior state issues director for the Guttmacher Institute. “What we’re seeing now is legislators wanting to pass an extreme abortion ban because they’re aiming at overturning Roe v. Wade.”
That was what Janet Porter, the original architect of the nation’s first heartbeat bill, always wanted.
The Ohio resident and longtime antiabortion advocate seeded the idea in 2010, at the funeral of her former boss at Ohio Right to Life, where she had worked for a decade. The man died before banning abortion nationwide, and Porter couldn’t help but ponder all the work yet to be done.
“If we can’t protect them all,” Porter said she thought at the time, “let’s protect as many as we can.”
Three months and many meetings later, she had rallied an Ohio state lawmaker to introduce her brainchild. And eight years after that, it was finally signed into law by Gov. Mike DeWine.
“I don’t think we left any stone unturned to get this bill across the finish line,” Porter said Wednesday. “It’s a bill that I hope will be welcomed by the Supreme Court of the United States.”
The American Civil Liberties Union has already promised to challenge the law in the lower courts, as they and other abortion-rights groups have done for every other “heartbeat” bill that has passed in recent years. For the cases to reach the high court, an appeals court judge would have to uphold one of the bans — in direct defiance of federal legal precedent.
This process will likely take years, and it’s unclear whether the Supreme Court’s justices would take up the case even if it did reach their desk.
“These bills are blatantly unconstitutional,” said Elisabeth Smith, chief counsel for state policy and strategy at the Center for Reproductive Rights, one of several groups that have challenged antiabortion legislation in court. “With the change in the Supreme Court, abortion opponents are hoping that the Supreme Court will change decades of jurisprudence and decide a case differently.”
“Hostile legislators introduce all these bills and hope for a different answer,” Smith said, despite decades of court rulings that reinforce a woman’s right to an abortion.
But years of state legislation restricting access to abortion, without outright banning it, has slowly whittled away at the kind of health care women can receive, and where they can receive it.
“What is going on with these abortion bans is totally void of legal thought, legal precedent, legal theory,” said Georgia state Rep. Dar’shun Kendrick, a Democrat who represents a progressive district. Her colleagues in the state legislature passed a heartbeat bill there last month, and the law is awaiting Republican Gov. Brian Kemp’s signature.
Hollywood celebrities have descended upon the state in recent weeks, calling on filmmakers with contracts there to withdraw their business unless the law is vetoed.
“There has always been bills out there,” said Kendrick, who has been a vocal opponent of the six-week ban in her state. “The difference is that now conservatives are empowered because of the president we have and the things he has said.”
Just in the first quarter of 2019, 28 states have introduced legislation that would ban or restrict abortion in some way, according to the Guttmacher Institute. This includes proposals for required waiting periods before a woman can undergo an abortion procedure; mandatory ultrasounds; limits on abortion coverage in health-care plans; regulations on equipment and clinic facilities; regulations on admitting privileges for providers; parental consent; limits on abortion medication; and bans on the most common abortion techniques.
There are also proposals to limit abortion at 12 and 20 weeks.
Some states have gone so far as to introduce and pass so-called trigger laws — or laws that ban abortion altogether but would only go into effect in the event that Roe v. Wade is overturned by the Supreme Court. They are symbolic more than anything, Nash said, “except that right now everybody is pretty nervous about them.”
At the same time, a number of progressive states have passed their own “trigger laws,” but these protect abortion rights, rather than restrict them.
“All these state legislators are looking at the Supreme Court,” Nash said.
What comes next for Porter and her heartbeat bill — now a heartbeat law — is just a matter of time, she said: “Stay tuned.”