Heartbeat Bill

See also Heartbeat Bill litigation.

The Heartbeat Bill is pro-life legislation originating with activist Janet Porter in Ohio, which prohibits abortion once the heartbeat of the unborn child is detectable. "Once a heartbeat is detected, the child is protected."

A heartbeat develops in an unborn child typically in the fifth or sixth week of pregnancy. A federal version of the bill, H.R. 490, was introduced in Congress in 2017 by Rep. Steve King, but blocked from a floor vote in the House of Representatives. A total of 173 congressmen have signed on as co-sponsors of the Heartbeat Bill, H.R. 490, as of July 27, 2018.

Fourteen states have passed a Heartbeat Bill as of April 28, 2021, including in Idaho and Oklahoma in April 2021, and South Carolina on February 18, 2021. Texas enacted a version of the bill in May 2021 which is based on private enforcement rather than state enforcement, which has frustrated attempts by pro-abort groups to block the bill.

Heartbeat Bills have been enacted in all of these states:

1. Arkansas (March 6, 2013)
2. North Dakota (March 26, 2013)
3. Iowa (May 4, 2018)
4. Kentucky (March 9, 2019)
5. Mississippi (March 21, 2019)
6. Ohio (April 11, 2019)
7. Georgia (May 7, 2019)
8. Missouri (May 24, 2019)
9. Louisiana (May 30, 2019)
10. Tennessee (July 13, 2020)
11. South Carolina (Feb. 18, 2021)
12. Oklahoma (April 26, 2021)
13. Idaho (April 27, 2021)
14. Texas (May 19, 2021) (unique with its special provision for private lawsuits to enforce, rather than government enforcement)

As of May 20, 2019, here are the landslide margins by which the Heartbeat Bill has passed in state legislatures in 2019:

• Alabama: 74-3 and 25-7 (full protection bill)
• Georgia: 92-78 and 34-18
• Kentucky: 71-19 and 31-6
• Mississippi: 78-37 and 34-14
• Missouri: 110-44 and 24-10
• Ohio: 56-40 and 19-13

Heartbeat Bills are also pending in Florida, South Carolina, West Virginia, Rhode Island, Illinois, Maryland, New York, and Minnesota.

The Heartbeat Bill separates the wheat from the chaff among politicians and organizations that call themselves pro-life. The National Right to Life Committee typically aligns itself with moderate Republicans (it endorsed Fred Thompson in 2008 for president) and has not endorsed this bill. Ohio Right to Life has lost local chapters in Ohio due to its decision not to endorse passage of the Heartbeat Bill:

“

The refusal of Ohio Right to Life to get behind the heartbeat proposal has led to bitter dissent. In the last two weeks, six county chapters have angrily withdrawn from the organization including, on Thursday, the Cincinnati chapter, the state’s oldest and largest.

”

So-called "Right to Life" groups in other states, such as Tennessee, Texas, and even the National Right to Life, have also sided with liberal Republicans in failing to support the Heartbeat Bill. In other states some "Right to Life" groups pretend to support the bill but actually work behind the scenes to prevent a vote on it.

Decisions concerning heartbeat legislation

In two cases handled by the same panel on the Eighth Circuit, it invalidated heartbeat legislation in Arkansas and North Dakota.

In the Arkansas case, the court held as follows:

The Arkansas State Medical Board (the State) appeals from a summary judgment permanently enjoining certain sections of the Arkansas Human Heartbeat Protection Act. Ark. Code Ann. §§ 20-16-1301 to 1307 (2013). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

The Act provides that a licensed physician "shall not perform an abortion on a pregnant woman before the person tests the pregnant woman to determine whether the fetus that a pregnant woman is carrying possesses a detectible [sic] heartbeat." Ark. Code Ann. § 20-16-1303(a) (footnote omitted). Further, a physician "shall not perform an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human individual whose heartbeat has been detected under § 20-16-1303 and is twelve (12) weeks or greater gestation." § 20-16-1304(a). If a physician violates section 1304, his or her medical license shall be revoked. § 20-16-1304(b). The Act provides exceptions to protect the life of the mother, for a pregnancy resulting from rape or incest, or for a medical emergency. § 20-16-1305. The Act requires informed disclosures about the existence of a heartbeat and the probability of bringing the unborn to term. § 20-16-1303(d), (e). ....

Edwards v. Beck, 786 F.3d 1113, 1115-16 (8th Cir. 2015).

In the North Dakota case, the same three-judge panel held less than two months later that:

This case presents the question whether, given the current state of medical science, a state generally may prohibit physicians from aborting unborn children who possess detectable heartbeats. The district court held that it may not. Because United States Supreme Court precedent does not permit us to reach a contrary result, we affirm.

I.

North Dakota has, for a number of years, prohibited abortion "[a]fter the point in pregnancy when the unborn child may reasonably be expected to have reached viability," except when necessary to preserve the life or health of the mother. N.D. Cent. Code § 14-02.1-04(3). North Dakota defines "viable" as "the ability of an unborn child to live outside the mother's womb, albeit with artificial aid." Id. § 14-02.1-02(19). In 2013, North Dakota passed House Bill 1456, codified at N.D. Cent. Code § 14-02.1, which extends the general prohibition on abortion to the point in pregnancy when the unborn child possesses a detectable heartbeat. H.B. 1456 contains two operative provisions. The first requires a physician performing an abortion to "determin[e], in accordance with standard medical practice, if the unborn child the pregnant woman is carrying has a detectable heartbeat." H.B. 1456 § 1.1, 63d Leg. Assemb., Reg. Sess. (N.D. 2013). This requirement does not apply "when a medical emergency exists that prevents compliance." Id.; see also N.D. Cent. Code § 14-02.1-02(12) (defining "medical emergency"). A physician who violates the heartbeat testing requirement is subject to disciplinary action before the state board of medical examiners. See H.B. 1456 § 1.2. The second operative provision prohibits a physician from performing an abortion on a pregnant woman if the unborn child has a "heartbeat [that] has been detected according to the requirements of section 1." Id. § 2.1. There are exceptions for the life or health of the pregnant woman and for the life of another unborn child. Id. § 2.2(a). A physician who violates this provision commits a felony. Id. § 2.4. The pregnant woman, however, is not subject to liability. Id.

MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 770 (8th Cir. 2015).

Contrast with Personhood Amendment

Some pro-lifers, including James Bopp, have compared the Heartbeat Bill to the Personhood Amendment. But there is no similarity, and the Heartbeat Bill has none of the flaws associated with the Personhood Amendment.

• the Heartbeat Bill is legislation, not an initiative, thus is free of the election mischief that the Personhood Amendment causes;
• the Heartbeat Bill does not implicate contraception, which is a more difficult issue politically and legally, while the Personhood Amendment has been accused of banning some forms of contraception;
• the Heartbeat Bill is supported by genuine and effective pro-lifers, including Janet Porter, Jack Willkie and Michele Bachmann; and
• the Heartbeat Bill is clear and not susceptible to misinterpretations by courts.

See also

• Abortion legislation 2011
• Texas Heartbeat Act

Further reading

• Christian Post article about the controversy