Explainer: Two more states pass fetal heartbeat legislation

Plus an abortion ruling in Tennessee

April 30, 2021

On Monday the governor of Oklahoma signed into law a bill that bars most abortions after a fetal heartbeat can be detected. Then on Tuesday, the governor of Idaho signed a similar bill that contains a “trigger provision,” meaning it won’t go into effect unless a federal appeals court somewhere in the country upholds similar fetal heartbeat legislation from another state. These are the latest abortion restrictions to be passed in the U.S. that impose a gestational ban (i.e., a law that prohibits abortion after a specific point in pregnancy). 

What is “fetal heartbeat” legislation?

Fetal heartbeat legislation attempts to ban abortions within a state after the point where the heartbeat can be detected. By use of an ultrasound, the heartbeat of a child in the womb can routinely be detected as early as six to seven weeks after conception (in the eighth or ninth week of pregnancy, since doctors typically date pregnancy two weeks before fertilization). The result is that such laws effectively ban almost all abortions after the first two months of pregancy. 

Why is fetal heartbeat used as the criteria?

In the Roe v. Wade (1973) decision, the Supreme Court acknowledged that states may have a compelling interest in protecting fetal life. States that pass such legislation argue they have a compelling interest in protecting the life of an unborn human individual who has a high probability of being born.

More than 90% of pregnancies survive the first trimester if cardiac activity is detected in the gestational sac, while nearly 90% of in vitro pregnancies do not survive the first trimester where cardiac activity is not detected in the gestational sac. Fetal heartbeat, therefore, has become a key medical predictor that an unborn human individual will, if protected, remain alive until birth.

Which states have passed fetal heartbeat legislation?

North Dakota became the first state to pass a fetal heartbeat law in 2013. Since then similar bills have passed in 12 other states: Alabama, Arkansas, Georgia, Idaho, Iowa, Louisiana, Kentucky, Mississippi, Missouri, Ohio, Oklahoma, and Utah. 

Such bills have failed to pass in eight states: Indiana, Kansas, Michigan, Minnesota, New York, South Carolina, Texas, and Wyoming. They have also been proposed or re-proposed after failing to pass in 11 states: Florida, Illinois, Maryland, Michigan, Minnesota, New York, Pennsylvania, South Carolina, Tennessee, Texas, and West Virginia.

A federal Heartbeat Protection Act was also proposed in Congress in 2017 and again in 2021.

What is the status of the legislation in the four states that passed fetal heartbeat laws?

Currently, all fetal heartbeat laws passed before this week have been blocked by the courts. Pro-life activists, however, are hopeful the laws will be a challenge the Supreme Court takes up and uses to either overturn Roe v. Wade or allow for broader restrictions on abortion.

Addendum: Judge allows 48-hour abortion waiting period to resume in Tennessee 

Last week, the Sixth Circuit Court of Appeals lifted the injunction against Tennessee’s 48-hour waiting period to obtain an abortion. As The Tennessean reports, “The law, which is now back in effect, requires a woman seeking an abortion first to be counseled by a doctor in-person and then wait at least 48 hours before returning for an abortion.” Because of this ruling from the Sixth Circuit, the Tennessee law will now remain in effect while the state appeals District Judge Bernard A. Friedman’s October 2020 ruling that deemed the mandatory waiting period for abortions to be unconstitutional.