Over the past several years, state legislatures have enacted a record-breaking number of abortion restrictions. That pace hasn’t abated during this year’s legislative sessions, as lawmakers are rushing to pass measures to shut down abortion clinics and create additional red tape for women seeking abortions. But even though the assault on reproductive rights has been steadily gaining ground, there’s one type of restriction that hasn’t been able to win enough support, even among some anti-choice Republicans.
So-called “fetal heartbeat bills,” a radical proposal to cut off legal abortion services at just six weeks — before many women even realize they’re pregnant — are failing in states across the country. Although the far-right abortion opponents who push six-week bans claim that the procedure should be outlawed after a fetal heartbeat can first be detected, they can’t always get their other colleagues to sign onto the effort.
Last year, North Dakota and Alabama became the first states in the country to pass abortion restrictions banning the procedure after the detection of fetal heartbeat (although Arkansas’ ended up being amended to a 12-week ban). Perhaps observing that those two laws have both been blocked from taking effect because they blatantly violate Roe v. Wade, at least five state legislatures have declined to advance fetal heartbeat bans so far this year:
ALABAMA: Lawmakers in Alabama introduced a package of several anti-abortion restrictions, including a six-week abortion ban, on the same day in February. The legislature rushed to approve two of those measures before the state’s session came to a close this week, but the Senate didn’t take up the heartbeat ban. Senate President Pro Tem Del Marsh (R) said he’s waiting to see how the legal challenges to six-week bans in other states before Alabama passes its own version “and spends dollars we don’t have as a state.” The lawmaker who introduced the bill said she’s “very, very disappointed” that the legislature “didn’t have the fortitude” to approve it anyway.
MISSISSIPPI: Mississippi has been trying and failing to enact a heartbeat ban for several years in a row. Gov. Phil Bryant (R) has already indicated that he’s eager to sign one. “It would tell that mother, ‘Your child has a heartbeat,’” he told supporters at an anti-abortion event last year. But so far, this bill has repeatedly failed to make it out of committee. The state recently passed a 20-week abortion ban, but the heartbeat bill — which would have banned abortion at 12 weeks, like the one in Arkansas — remains a step too far.
KANSAS: Top Republican lawmakers in Kansas have decided to block a six-week abortion ban this year because they’re not interested in provoking a legal fight. Even though the legislature has strong GOP majorities, the politicians there are taking their cues from Kansans for Life, the most influential anti-choice group in the state. Kansans for Life doesn’t support the proposed fetal heartbeat ban because they’re nervous that a court battle would end up striking it down. “We’re just being cautious,” House Majority Leader Jene Vickrey (R) explained when asked why the legislature hasn’t scheduled a vote on the measure.
KENTUCKY: A fetal heartbeat measure was introduced again in Kentucky this session, after failing to advance last year, but abortion opponents haven’t had much luck this time around either. The measure is currently stalled in committee with little chance of passing. Pro-choice Kentucky lawmakers have been able to successfully block proposed abortion restrictions for several years in a row, so there’s little chance that a radical six-week abortion ban will make it through.
OHIO: Republicans in Ohio have long been divided over whether to adopt an aggressive anti-abortion strategy, and attempt to enact a harsh fetal heartbeat ban, or take a more subtle and incremental approach to chipping away at reproductive rights. This split has prevented the state from approving a six-week ban for the past several years, although it continues to be re-introduced. Senate President Keith Faber (R) says he won’t schedule a vote on the measure this session because he’s worried it will trigger a court challenge.
Indeed, legal battles over unconstitutional abortion restrictions come with a cost. North Dakota is gearing up to spend at least $600,000 to defend its stringent anti-abortion laws in court, while Kansas and Idaho have both accumulated legal fees in this area that top one million dollars.
In general, abortion opponents haven’t decided whether it’s better to continue gradually chipping away Roe v. Wade piece by piece, or whether it’s necessary to take a bold stance to ban nearly all abortions. So far, feuds over this divide are bubbling to the surface in political races in Georgia and Kentucky. And some Republicans will need to adopt a particularly hardline stance against abortion if they want to court support from the country’s major anti-choice groups before the upcoming presidential primaries.
But so far, anti-choice lawmakers have actually had more success with the first, incremental strategy. That’s largely because radical restrictions like six-week bans, which are obviously extreme on their face, tend to capture headlines and spark outrage — while more subtle efforts to undermine abortion rights are able to slip under the radar.