By Giulia Schaub, Blog Editor
As of November 2019, all of the proposed “heartbeat bills,” the nickname given to pro-life legislation that places severe limitations on a woman’s right to have an abortion, have been blocked by federal judges in the seven states in which they have been passed.[1] Despite the legal roadblocks and the questionable constitutionality of these bills, conservative lawmakers in other states have been inspired by these enactments and are actively pushing for their own version of heartbeat bills – Pennsylvania included.[2]
On October 21, 2019, Pennsylvania Senator Doug Mastriano and House Representative Stephanie Borowicz introduced Senate Bill 912 and House Bill 1977, both of which prohibit abortion once a fetal heartbeat is detected, which usually occurs between six and eight weeks gestation.[3] During a press conference, both Mastriano and Borowicz cited the indication of life associated with a beating heart as the motivation behind the legislation.[4] “Since a heartbeat denotes the end of life, obviously, logically, scientifically, it denotes, clearly, the beginning of life,” Mastriano explained.[5] Borowicz further explained that she and Mastriano believe this understanding of prenatal life should guide when abortion is morally acceptable.[6] “When you hear a baby’s heartbeat, everything changes.”[7]
The bill immediately warranted backlash from other Pennsylvania lawmakers and advocacy groups. Before Pennsylvania entered the pool of states introducing heartbeat bills, Governor Tom Wolf vowed repeatedly that he would never sign such legislation were it to find its way onto his desk.[8] Following the press conference regarding Senate Bill 912 and House Bill 1977, he reiterated this stance: “The latest bill, a six-week abortion ban, defies all practical understanding of modern women’s health care. These policies run counter to the notion of individual freedom and lack a sound scientific basis.”[9]
Like similar bills in other states, Pennsylvania’s bill will likely be challenged by a civil liberties advocacy group and then blocked by a federal judge, should the bill be passed. However, pro-life lawmakers anticipate the challenges; in fact, these challenges are welcomed, in hopes the debate over these bills will pave the way to overturning Roe v. Wade.[10] In 1973, Roe held that women have the fundamental right to terminate their pregnancies.[11] However, the Supreme Court ruled this right was not absolute and thus the state has a compelling interest in regulating and prohibiting abortions in the third trimester of pregnancy.[12] Twenty years later, the Court upheld a woman’s right to have an abortion in Planned Parenthood v. Casey, but replaced the trimester framework with a system based on the viability of the fetus.[13] A fetus is generally believed to be able to survive on its own by 24 weeks of gestation.[14] Before the pregnancy reaches 24 weeks, the state may not interfere with or place an undue burden on a woman’s right to terminate her pregnancy.[15] However, once the fetus has the potential to survive on its own outside of the womb, the state’s interest in protecting fetal life prevails over the right to have an abortion, and therefore, the state may proscribe the procedure.[16]
The Casey holding is the current binding precedent, meaning that all states are required to uphold the viability framework and cannot prohibit abortion before 24 weeks gestation.[17] Thus, all heartbeat bills are unconstitutional because fetal heartbeats are detected far before a fetus is viable.[18] However, since President Donald Trump’s inauguration, two conservative justices have joined the Supreme Court, resulting in a conservative majority for the first time in years.[19] With so many constitutional challenges surrounding abortion legislation, the Court may to review the decision in Roe, and it has the legitimate potential to overrule it.[20]
Although they have only received widespread media attention in recent months, heartbeat bills and other forms of abortion legislation have warranted discussion and debate in state legislatures for the last several years, eventually finding their way into state and federal courtrooms.[21] In fact, the Supreme Court has decided to hear several abortion cases this past October.[22] The holding in June Medical Services v. Gee will decide whether the state of Louisiana may require doctors to have admitting privileges at local hospitals in order to perform abortions.[23] Identical legislation in Texas has already been ruled unconstitutional in Whole Women’s Health v. Hellerstadt in 2016.[24] However, the conservative United States Court of Appeals for the Fifth Circuit struck down and mischaracterized the rulings in that case, failing to consider that the Texas regulation left the state with 20 abortion clinics, and this law would likely leave Louisiana with just one.[25]
The Supreme Court has previously grappled with June Medical Services v. Gee: in February, a slim majority blocked the law from taking effect while the lower courts decided on a challenge from abortion providers.[26] The justices waited until October to decide whether the case demanded full review, seemingly hesitant to tackle an abortion case.[27] They had appeared to be avoiding taking on cases involving “hot button” issues, mostly likely to allow the dust to settle following the installment of Justice Brett Kavanaugh.[28] Additionally, Chief Justice John Roberts expressed concerns over the political nature of the Court, stating that a bipartisan bench threatened the Court’s reputation and credibility.[29] Whether prompted by the fuss surrounding heartbeat bills or by the upcoming election and potential shift in political power, the Supreme Court is ready to tackle the abortion issue, and should have a ruling on Gee by summer of 2020.[30]
While heartbeat bills attempt to prohibit abortion, laws similar to the one in Gee seek to regulate abortion procedures, clinics, and physicians.[31] Pro-life lawmakers are ultimately seeking virtually total prohibition with their heartbeat bills, but have not yet forgotten the ways they can promote pro-life principles through state regulation. On November 6, 2019, the Ohio Senate passed two anti-abortion bills to be sent to the House for review: one that requires physicians to notify their patients that medication abortions can potentially be reversed, and another that requires physicians to preserve the life of babies who survive the abortion procedure.[32] Eight other states have enacted similar laws, but federal judges have blocked reversal laws in two of those states.[33] Such drastic regulation, if upheld, would diminish the existing abortion right, contributing to pro-life lawmakers’ desire to eliminate the right completely.[34]
Pro-choice and pro-life advocates alike have vowed to relentlessly fight for their respective cause all the way to the highest court in the land, if need be. With our ever-changing political, social, and judicial climate, the future of the abortion right in Pennsylvania and across the country remains uncertain.
[1] Caroline Kelly, States passed a flurry of new abortion restrictions this year. Here’s where they stand, CNN (Oct. 29, 2019, 11:55 AM EDT) https://www.cnn.com/2019/10/27/politics/abortion-laws-states-roundup/index.html
[2] Ivey DeJesus, Pa. lawmakers introduce bill to ban abortion after fetal heartbeat is detected, The Phila. Inquirer (Oct. 21, 2019), https://www.inquirer.com/news/heartbeat-abortion-ban-pennsylvania-overturn-roe-wade-tom-wolf-promised-veto-20191021.html.
[3] Id.
[4] Id.
[5] Nick Matoney, New ‘heartbeat bill’ legislation that would restrict abortion introduced in Pennsylvania, WTAE (Oct. 22, 2019, 7:43 AM EDT), https://www.wtae.com/article/new-heartbeat-bill-legislation-to-be-introduced-in-pennsylvania/29531855.
[6] DeJesus, supra note 1.
[7] Id.
[9] Id.
[10] Laura Hancocok, Ohio House, Senate, Pass ‘Heartbeat’ Abortion Ban, Cleveland.com (April 11, 2019) https://www.cleveland.com/open/2019/04/ohio-house-passes-heartbeat-abortion-ban.html
[11] See Roe v. Wade, 410 U.S. 113, 154 (1973).
[12] Id. at 165-166.
[13] Planned Parenthood v. Casey, 505 U.S. 833, 878-79 (1992).
[14] Id. at 860.
[15] Id. at 878.
[16] Id. at 878-79.
[17] See, e.g., Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1793 (2019); Gonzales v. Carhart, 127 S. Ct. 1610, 1619 (2007); Isaacson v. Horne, 716 F.3d 1213, 1222 (9th Cir. 2013)
[18] Jessica Ravitz, Courts say ‘anti-abortion heartbeat bills’ are unconstitutional. So why do they keep coming? (May 16, 2019, 9:28 AM EDT) https://www.cnn.com/2019/01/26/health/heartbeat-bills-abortion-bans-history/index.html
[19] Alice Miranda Ollstein, SCOTUS will review Louisiana abortion law, setting up blockbuster election year showdown, Politico (Oct. 4, 2019, 11:31 AM EDT), https://www.politico.com/news/2019/10/04/supreme-court-review-louisiana-abortion-restrictions-000275.
[20] Id.
[21] Linda Greenhouse, A Supreme Court Abortion Case That Tests the Court Itself, The New York Times (Oct. 10, 2019), https://www.nytimes.com/2019/10/10/opinion/supreme-court-abortion.html.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Ollstein, supra note 19.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Laura Hancock, Ohio Senate passes abortion ‘reversal’ and abortion survival bills, Ohio Politics (Nov. 6, 2019), https://www.cleveland.com/open/2019/11/ohio-senate-passes-abortion-reversal-and-abortion-survival-bills.html.
[33] Id.
[34] Id.
