“Fetal Heartbeat” Bans are Gaining Momentum, but Abortion Restrictions Come in Many Forms
By Alexandra Hess
Alabama, Georgia, and Ohio have passed laws in recent weeks that ban many, if not all, abortions in their state. These bans are the latest additions to the litany of laws and policies that severely limit or totally prevent access to abortion for women in the United States.
“Fetal heartbeat” bans, like those enacted in both Ohio and Georgia, are some of the most restrictive types of gestational limitations on abortion in the U.S. They prohibit abortion at the point a fetal heartbeat is detectable by ultrasound—as early as six weeks’ gestation. This is often a point before many discover they are pregnant. Ohio and Georgia are not the first states to have enacted fetal heartbeat bans, however, and current legislative trends suggest they will not be the last. In 2019 alone, lawmakers have proposed heartbeat bans in at least 14 other state legislatures.
Arkansas, Iowa, and North Dakota have enacted heartbeat bans in recent years. The courts in those states have held that the bans are unconstitutional because they violate the U.S. Supreme Court decision in Roe v. Wade, which held that states may not prohibit a woman from obtaining an abortion prior to fetal viability. The landmark case defines viability as the point at which a fetus is capable of living with or without artificial aid outside the womb. Today, that point occurs at approximately 24 weeks’ gestation.
Based on previous court decisions, future heartbeat bans could face a similar fate. Legislators who sponsor the bills suggest that the ultimate purpose behind the bans is to challenge legal precedents altogether. A prompt legal challenge could, in theory, result in a split among the circuit courts and push the newly conservative Supreme Court to revisit Roe. If reversed, the Court could virtually eliminate abortion rights; states would have the authority to ban abortion at any point during a pregnancy. Some states have already gone this far—Alabama Governor Kay Ivey signed a bill on May 15 that criminalizes performing an abortion at any stage in a pregnancy, even in the case of rape or incest.
Limiting access to abortion has vast public health implications. Unsafe procedures, which contribute to maternal illness and death, declined after Roe. Despite lowered costs because of legalization, many women still face financial difficulties that often prolong an unwanted pregnancy. Lack of insurance coverage and expenses associated with travel and hotel stays make the procedure costly; these factors disproportionately affect women of color and low-income women. Gestational limits exacerbate existing obstacles by narrowing the timeframe to obtain a legal abortion.
Heartbeat bans are just one of many limitations on access to abortion. The Abortion Bans dataset published by the Policy Surveillance Program at the Temple University Center for Public Health Law Research captures gestational limits on abortion, as well as bans on specific procedures and certain reason-based abortions. Unlike heartbeat bans, many of these laws survive legal challenges and remain in effect. For example, as of December 1, 2018, 11 states prohibited abortion at viability. By contrast, the dataset also reveals that 18 states prohibited abortion after 20 weeks post-fertilization (though nearly all of these bans have been limited completely, or in part, by a court decision or attorney general opinion).
The dataset also captures procedure-based bans such as Dilation and Evacuation (D&E) abortions, one of the safest and most common second trimester abortion procedures. As of December 1, 2018, D&E abortions were banned in nine states. Some states impose restrictions based on a woman’s reason for seeking an abortion. One Indiana law, for example, bans abortion on the basis of race, sex, or disability. The law was enjoined, however, and the U.S. Supreme Court will soon decide whether to hear the appeal.
Abortion bans based on reason, procedure, or gestational age significantly limit access to safe, legal abortion care. Without protections afforded by Roe, restrictions like heartbeat bans could become more common in states across the U.S. The Abortion Bans dataset is part of a comprehensive suite of legal datasets capturing 15 different types of abortion regulations, called the Abortion Law Project.
Visit LawAtlas.org to learn more about laws that govern access to abortion across the U.S.
Alexandra Hess, Esq. is a Law and Policy Analyst at the Center for Public Health Law Research. The Abortion Law Project was created through a collaboration between the Policy Surveillance Program at Temple University’s Center for Public Health Law Research, Guttmacher Institute, Resources for Abortion Delivery (RAD), American Civil Liberties Union, Center for Reproductive Rights, National Abortion Federation, and Planned Parenthood Federation of America.
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