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The Next Abortion Battleground: Fetal Heartbeats—A Commentary by Adam Cohen

The following commentary was posted on TIME.com on October 17, 2011.

The Next Abortion Battleground: Fetal Heartbeats
By Adam Cohen

Abortion opponents have a new weapon of choice: the “heartbeat bill.” A coalition of anti-abortion groups told the Associated Press last week that it was pushing to enact laws in all 50 states that would make women listen to a fetus’s heart beat before they could abort. Michele Bachmann (R-Minn.) has introduced a similar federal bill, The Heartbeat Informed Consent Act, in Congress.

When the Supreme Court decided Roe, critics of abortion vowed to get it overturned. They have not succeeded in that. But they have managed to pass a wide array of laws — some upheld by the courts, others struck down — making access to abortion more difficult. The Supreme Court has ruled that states can impose some restrictions, such as 24-hour waiting periods and parental consent requirements, but has struck down others, such as laws forcing women to notify their spouses. The heartbeat laws are the latest effort in a decades-long campaign that — as conservatives gain strength at the state level—appears to be gaining ground.

Recently, abortion opponents have been pushing some tough new restrictions — and prompting lawsuits over whether they go too far. Five states — Indiana, Kansas, Alabama, Idaho, and Oklahoma — have adopted laws that ban almost all abortions after the five-month mark. Meanwhile, Ohio is considering enacting the most extreme anti-abortion law in the nation. Its House of Representatives has voted for a bill that would ban all abortions once a heartbeat can be detected, which can occur as early as six weeks. That is a frontal assault on Roe, which recognized a right to abortion until “viability,” the point — around the 22nd week — when a fetus can survive outside the womb.

The new heartbeat bills don’t go quite as far — they would simply require abortion providers to make the fetus’s heartbeat audible to a woman seeking an abortion. Supporters argue that making the woman listen to the heartbeat — or look at an ultrasound image of the fetus, as Bachmann’s bill also requires — is important for true “informed consent.” They also believe that women who are provided with this kind of information are less likely to end their pregnancies. According to Bachmann, a poll by Focus on the Family, a group opposed to abortion, found that when women who were undecided about whether to end a pregnancy were shown an ultrasound of the fetus, 78% did not have the abortion.

Abortion rights advocates, however, insist that the heartbeat bills are an attempt to interfere with women’s right to make private medical decisions. They argue that the state has no business trying to lobby patients about medical procedures, or to turn doctors into government mouthpieces. At the moment, popular opinion is sharply divided on whether the state should require women to confront evidence of a fetus’s development. A Gallup poll in July found that 50% of those surveyed supported laws requiring women to be shown ultrasound images of their fetuses, while 46% were opposed.

But critics of these bills scored an important win in August, when a federal judge struck down parts of a new Texas law requiring women seeking an abortion in most cases to view a sonogram and listen to the fetal heart beat. Judge Sam Sparks ruled that the Texas law — which Gov. Rick Perry helped to push through the legislature — violated the First Amendment. “The act compels physicians to advance an ideological agenda with which they may not agree,” he said. The issue could end up in the Supreme Court.

While challenges to heartbeat laws make their way through the courts, anti-abortion forces are working on new — and in some cases more radical — measures. Next month, Mississippi will vote on whether to add a “personhood amendment” to its state constitution that would declare that personhood begins at conception. If it passes — and a court does not block it — the amendment could ban all abortions in the state and even some kinds of contraception, such as IUDs.

The Mississippi amendment may sound outrageous — and critics are pointing out how sweeping its implications could be. (One Mississippi law professor has suggested that if life begins at conception, state residents might be eligible to vote at the age of 17 and 3 months) It is unlikely that the Supreme Court would allow Mississippi to ban all abortions, but one thing seems inevitable: more fights over how far the states can go to rein in the constitutional right to abortion.

Cohen, the author of Nothing to Fear, teaches at Yale Law School.