States are already pre-filing ‘fetal heartbeat’ bans for the new year

The new marker based on bad science is a near-total abortion ban.

Credit: Hero Images
Credit: Hero Images

Fetal heartbeat bills aim to outlaw abortion when a “heartbeat” is detected and, in recent days, it’s the ban Republican state lawmakers have been coalescing around — a trend signaling the anti-abortion movement is ready for a complete ban if the Supreme Court is.

There was a rise in state legislatures considering fetal heartbeat bills in 2018, and it’s certain to continue in the new year. The Ohio legislature just sent its heartbeat ban to the governor, who’ll likely veto it; however, the incoming governor promised he’d sign such a ban into law when he takes office next year. Iowa was the first state in 2018 to effectively ban abortions up to six weeks, considered to be “the most restrictive” ban nationwide, and now tied up in court. State lawmakers elsewhere are already planning to introduce similar measures in 2019, with pre-files in South Carolina, Kentucky, and Missouri.

Lawmakers in Texas and South Dakota, meanwhile, are teeing up bills next year that try to humanize a fetus by affording it rights and requiring pregnant people to listen to the heartbeat, respectively.

The heartbeat ban, itself, is a misnomer. While a fetus’ heart begins to form as early as six weeks of pregnancy, or around the time a “heartbeat” can be detected, it’s still not a fully developed organ. Cardiac activity also isn’t a credible measure of viability, as there’s still a high chance of miscarriage and pregnancy complications. What these heartbeat bans do is outlaw abortions early during the first-trimester, before many people know they are pregnant.


It appears the objective with these measures is to make abortion more and more inaccessible — not to ban it when the “heartbeat” is first detected. When the Ohio legislature, for example, was trying to pass its ban, state Senate lawmakers amended the bill to say providers could also use an abdominal ultrasound, which detects a “heartbeat” a few weeks later than five or six weeks, usually around 11 weeks.

In 2011, Ohio lawmakers failed to pass a heartbeat ban. The anti-abortion movement was also in strategic disagreement. Ohio Right to Life, for one, opposed the ban, as members thought the Supreme Court wouldn’t affirm such a measure. But the times have changed since Donald Trump appointed two justices to the Supreme Court. Indeed, Ohio Right to Life says it sees “an opportunity” with Justice Anthony Kennedy’s retirement.

“There’s a real momentum around banning abortion at the state level and it’s stemming from the shift in the U.S. Supreme Court,” said Elizabeth Nash, a senior states-issue manager at the Guttmacher Institute.

States pursuing these measures want to criminalize effectively all abortions and many want to be credited as the state that brought the lawsuit that overturned the right to pre-viability abortion established in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey. “It is time for the Supreme Court to weigh in on the issue of life,” said one Iowa representative about its measure. “We literally crafted this legislation to be the arrow in the heart of Roe v. Wade,” said the author of Ohio’s ban.

It was also the inevitable next step for states that already have so many restrictions on the books. Many of these states already have laws that make terminating a pregnancy more difficult, particularly if someone’s low-income. Kentucky, for example, already prohibits abortions after 20 weeks, is trying to outlaw a common second-trimester procedure, and mostly bans public and private health plans from covering it.


It’s the latest marker in abortion restrictions, but this time, the strategy has changed. Unlike, say the uptick in 20-week bans a few years back, lawsuits aren’t a setback this time around. Unlike some later-term abortion bans that were never really challenged in court — mostly because providers weren’t really performing abortions then so there weren’t always plaintiffs for lawsuits — heartbeat bans will be. But that’s the point. 

“It’s old wine, new bottles,” Nash told ThinkProgress. “They want to ban abortion and they are using different approaches to get there.”

This isn’t to say the ideological shift in the Supreme Court galvanized the anti-abortion movement alone. New Mexico, New York, and Rhode Island might codify Roe next year. In fact, 2018 was also the first time in recent years the number of laws looking to expand access outpaced restrictions, according to a recent preliminary Guttmacher analysis.