Heartbeat Bans

Heartbeat bans attempt to outlaw abortions as soon as a heartbeat can be detected, which is often in the embryonic stage, as early as six weeks’ gestation, before many people even know they are pregnant. These laws, some of the most extreme in the country, are flatly unconstitutional because they seek to ban abortion months before the point at which a fetus is viable.

The U.S. Supreme Court, in Roe v. Wade, made it clear that states may not ban abortion outright before the fetus is determined to be viable, recognized by the medical community as around 24 weeks’ gestation. In addition, the U.S. Supreme Court ruled in Planned Parenthood v. Casey that states may not place an undue burden on a woman’s right to choose an abortion. Like laws that attempt to ban abortion at 20 weeks’ gestation, bills banning abortion after detection of a fetal heartbeat are intended as a direct challenge to these U.S. Supreme Court decisions.

Heartbeat ban bills first rose to prominence in Ohio in 2011, where anti-choice activist Janet Porter and her organization Faith2Action sent thousands of heart-shaped balloons to the Ohio statehouse on Valentine’s Day to thank legislators who sponsored HB 125, Ohio’s heartbeat bill. The bill was supported by Porter and her allies, as well as by numerous Republican legislators, led by Rep. Lynn Wachtmann (R-Napoleon), who sponsored the bill.

Yet not everyone in the anti-choice movement supported the passage of the heartbeat bill. For example, prominent anti-choice activist James Bopp Jr. testified against the bill, expressing concerns that it would provide the U.S. Supreme Court an opportunity to strengthen Roe v. Wade. Ohio Right to Life, which also opposed the ban, believed that the heartbeat bill would sidetrack other anti-choice bills—like 20-week bans—that had a greater chance of being enacted. Ultimately, the Ohio heartbeat bill failed to pass, but it provided a blueprint for other states attempting to pass similar laws.

Examples of Heartbeat Bans (last updated May 30, 2019)

In 2013, two states ultimately succeeded in passing heartbeat laws. Both Arkansas and North Dakota passed heartbeat ban legislation prohibiting abortion early in the first trimester of pregnancy. Arkansas’ legislation required an abortion provider to use an abdominal ultrasound to detect a fetal heartbeat and banned abortion when the pregnancy has progressed to 12 weeks and a fetal heartbeat is detected. North Dakota went even further, passing the most stringent anti-choice legislation in the country—a bill that bans abortion as soon as a fetal heartbeat can be detected using “acceptable medical practice,” which is approximately six weeks through the use of a transvaginal ultrasound.

Both laws were immediately challenged in court and blocked.

In May 2015, the Eighth Circuit Court of Appeals affirmed a lower court ruling blocking Arkansas’ law. In January 2016, The U.S. Supreme Court declined to review the case, leaving the Eighth Circuit’s ruling in place.

Similarly, the Eighth Circuit Court of Appeals affirmed a lower court decision blocking North Dakota’s law in July 2015. As with Arkansas’ law, the U.S. Supreme Court declined to review the case. The law remains permanently blocked.

In 2016, Ohio was also successful in passing a heartbeat ban. The heartbeat law prohibited any person from knowingly and purposefully performing or inducing an abortion on a pregnant patient with the specific intent of causing or abetting the termination of the life of the “unborn human individual” the pregnant patient was carrying and whose fetal heartbeat had been detected. The bill did not include an exception for cases of rape or incest. Citing previous bans which had been struck down, Gov. Kasich (R) vetoed the legislation. However on the same day, Kasich signed a 20-week abortion ban into law.

Legal setbacks have not stopped anti-choice legislators from persisting in their attempts to pass these laws. During the 2017-2018 legislative sessions, heartbeat bans were introduced in Iowa, Minnesota, Mississippi, Missouri, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, and the U.S. Congress.

2018

On May 4, 2018, Iowa Gov. Kim Reynolds (R) signed SF 359 into law, prohibiting the performance of an abortion from the time a fetus has a detectable heartbeat. Planned Parenthood and the ACLU of Iowa filed a lawsuit in state court arguing the law violated the Iowa Constitution. On January 22, 2019, the law was ruled unconstitutional.

On December 12, 2018, Ohio lawmakers passed HB 258, prohibiting the performance of an abortion when a fetal heartbeat has been detected. The bill was amended to clarify that the use of a transvaginal ultrasound to detect the fetal heartbeat would not be required—essentially banning abortion anywhere from 9 to 12 weeks’ gestation (the time at which an abdominal ultrasound can be used to detect a fetal heartbeat). Once again, Gov. John Kasich vetoed the legislation and lawmakers were unable to secure enough votes for an override. In a familiar move, Kasich instead signed a law banning D and E procedures, the most common method of second-trimester abortion.

2019

At least sixteen states (Florida, Georgia, Illinois, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, New York, Ohio, South Carolina, Tennessee, Texas, and West Virginia) have introduced measures to ban abortion as early as six weeks into a pregnancy.

On March 15, 2019, Kentucky Gov. Matt Bevin (R) signed SB 9 into law, making it a felony to perform or induce an abortion when a fetal heartbeat has been detected. The law was immediately challenged and temporarily blocked in federal court.

On March 21, 2019, Mississippi Gov. Phil Bryant (R) signed SB 2116 into law, prohibiting the performance of an abortion once a fetal heartbeat has been detected. On March 29, 2019, the Center for Reproductive Rights and Mississippi Center for Justice expanded their current lawsuit against the state’s 15-week ban to include a challenge to the “heartbeat ban.” On May 24, 2019, U.S. District Court Judge Carlton Reeves issued a preliminary injunction blocking the law from taking effect.

On April 11, 2019, Ohio Gov. Mike DeWine (R) signed SB 23 into law, prohibiting a physician from performing or inducing an abortion on a pregnant person when the fetus has a detectable heartbeat. The measure is slated to take effect in July. The ACLU of Ohio is preparing to challenge the law.

On May 7, 2019, Gov. Brian Kemp (R) signed HB 481, an omnibus abortion bill which—among other things—bans abortion once a fetal heartbeat has been detected. 

On May 30, 2019, Gov. John Bel Edwards (D) signed SB 184 into law, prohibiting the performance of an abortion once a fetal heartbeat is detected. The measure will only take effect if the United States Court of Appeals for the Fifth Circuit upholds Mississippi’s nearly identical law, SB 2116.

Laws