Heartbeat bills have been gaining momentum and stirring up controversy in state legislatures across the country. These measures would ban abortion after the detection of a fetal heartbeat, which can occur as early as six weeks of pregnancy — before some women even know that they’re pregnant.
The effectiveness of this legislation has been a subject of disagreement among pro-life groups, as all of the bills thus far have been struck down by the courts and have resulted in costly legal fees.
Bishop Richard Stika of the Diocese of Knoxville and Bishop J. Mark Spalding of the Diocese of Nashville waded into the controversy recently and argued against Tennessee’s bill, which passed the state’s House of Representatives and has the backing of the state Senate and of Republican Gov. Bill Lee.
A Prudent Approach
“While we wholeheartedly support the intention of the ‘Heartbeat Bill’ being considered by the Tennessee Legislature, we must also be prudent in how we combat the pro-abortion evil that dwells in our society,” the bishops wrote.
They pointed out that while heartbeat bills have been passed in several states, they have been “consistently struck down by state and federal courts alike for being unconstitutional.”
They also cited concern about strengthening the precedent of the Roe v. Wade decision through these cases, ultimately making it more difficult to overturn.
“States that defend their own ‘Heartbeat Bills’ must pay attorney’s fees to Planned Parenthood when Planned Parenthood sues that state and wins in court,” they added. “North Dakota is reported as being court ordered to pay $241,000 in attorney’s fees to Planned Parenthood. Similarly, the state of Arkansas was ordered to pay $121,689 in attorney’s fees to the pro-abortion plaintiffs when Arkansas lost its case.”
They conclude that “it would not be prudent to support the ‘Heartbeat Bill’ knowing the certainty of its overturning when challenged, in addition to the court-ordered fees that would be paid to the pro-abortion plaintiffs.”
Jim Wogan, the director of communications for the Diocese of Knoxville, told the Register that the bishops “want to see a prudent approach to ending abortion — one that doesn’t give Planned Parenthood and other abortion supporters significant victories that hurt our cause” and that they “support any and all legislative efforts that have a reasonable chance to make it to the U.S. Supreme Court in the effort to overturn Roe v. Wade.”
“Tennessee Right to Life also opposed the House bill, and some respected pro-life lawmakers here in Tennessee, including Lt. Gov. Randy McNally, have voiced doubts about the survivability of this kind of legislation,” Wogan added.
Changes in the Supreme Court
Pro-life groups are more supportive of the heartbeat bill in Ohio, where the state’s former governor, John Kasich, a Republican, vetoed the legislation last year, arguing that the bill was “contrary to the Supreme Court of the United States’ current rulings on abortion.”
The last time the Supreme Court had a chance to consider such legislation was when North Dakota passed a heartbeat bill in 2013. The bill was ruled unconstitutional at the appellate-court level after lawsuits, and the Supreme Court declined to consider the case, leaving the lower court’s ruling in place.
However, proponents of the measure, including Kasich’s successor, Gov. Mike DeWine, also a Republican, now argue that with President Trump’s two recent Supreme Court appointees, Justices Brett Kavanaugh and Neil Gorsuch, the court is friendlier to pro-life causes and could consider the constitutionality of the heartbeat bill.
“Planned Parenthood is going to be in the next day, or that day, filing a lawsuit. But, ultimately, this will work its way up to the United States Supreme Court. And they’ll make that decision,” DeWine told Hugh Hewitt in January.
As the Ohio Legislature weighs and is likely to pass the heartbeat bill, Ohio Right to Life spokesman Jamieson Gordon referred the Register to the group’s rationale for backing the bill.
“Ohio Right to Life believes that it is now time to embrace the heartbeat bill as the next incremental approach to end abortion in Ohio,” Marshal Pitchford, the chairman of the Ohio Right to Life board of trustees, said in a statement. “With the additions of Justices Gorsuch and Kavanaugh to the U.S. Supreme Court, we believe this is the most pro-life court we have seen in generations. Now is the time to pursue this approach.”
The Ohio Catholic Conference, the public policy arm of the state’s bishops, also recently came out in support of the bill.
Jim Tobin, the conference’s associate director of the Department on Social Concerns, told the Register why the Ohio bishops are backing the legislation this year.
He pointed out that since a position on legislation “involves prudential decision making,” that means “persons of goodwill may differ as to the specifics of a proposal.” He said that initially the Ohio Catholic Conference “held a position similar to that of the bishops of Tennessee,” but their position “changed as the political circumstances in Ohio changed.”
“Our new governor will sign the bill, and several changes are being proposed in the wording that should help in implementation,” he said.
“The heartbeat bill will challenge the current legal precedents to abortion,” the conference’s statement on the bill said. “With new changes in the United States Supreme Court, it is our sincere hope that this legislation will withstand constitutional challenge and be implemented in order to save lives.”
This argument appears to be in the minds of pro-life legislators across the nation, as heartbeat bills are also being considered in Georgia, Florida, Kentucky, Missouri, Mississippi, Arkansas, Minnesota and Texas.
A Practical Alternative
Catherine Glenn Foster, the president of Americans United for Life, told the Register that states should weigh prudential concerns when considering pro-life legislation like a heartbeat bill.
“A number of states are considering first-trimester prohibitions on abortion in the 2019 legislative sessions,” she said. “Pro-life legislators need to be prudent in considering their goals and the opportunities and obstacles.”
She emphasized the fact that “no first-trimester prohibition has ever gone into effect, and the Supreme Court has given no indication that it is interested in reviewing them.”
Foster proposed what she believed to be a more practical alternative for state legislators.
“Legislators should consider the potential good that might come from alternative pro-life policies — like the Ohio defunding law that was upheld by a federal appeals court March 12 — that have a better chance of being effectively enforced and that can protect women and children from the negative impact of abortion in the short term,” she argued. “At a time when the abortion industry must be defunded, legislators should avoid funding the abortion industry through tax dollars that pay the industry’s attorney’s fees.”
Register correspondent Lauretta Brown writes from Washington.