Fetal heartbeat bill
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A fetal heartbeat bill is a form of proposed abortion legislation in the United States of America which makes abortions illegal as soon as the fetus' heartbeat can be detected, based on the conclusion that a fetus is a person as soon as it has a heartbeat. Fetal heartbeats can be detected at about six to seven weeks into the pregnancy,[nb 1] but may be as late as twelve weeks when detected with a Doppler fetal monitor.
Fetal heartbeat bills by state
A bill prohibiting abortions after a heartbeat can be detected was passed by a vote of 73-29 in the Alabama House on March 4, 2014. In doing so they became the first state to pass such a law. The bill later died in committee.
A fetal heartbeat bill, banning abortion after twelve weeks, was passed on January 31, 2013 by the Arkansas Senate, vetoed in Arkansas by Governor Mike Beebe, but, on March 6, 2013, his veto was overridden by the Arkansas House of Representatives. A federal judge issued a temporary injunction against the Arkansas law in May 2013, and in March 2014, it was struck down by Judge Susan Webber Wright, who described the law as unconstitutional.
The bill was introduced and referred to committee in February 2013. The bill was presented to the Kansas house in March 2013. The bill was known as House Bill 2324, "An act prohibiting an abortion of an unborn human individual with a detectable fetal heartbeat."  One outspoken advocate of such bills is Mark Gietzen, who has tried to gather as many signatures as possible in order to get Sam Brownback to convene a special session of Congress in order to consider the bill. Gietzen also advocated for a fetal heartbeat law to be passed during a special session of the Kansas legislature, to be held on September 3, 2013. HB 2324 died in committee in May 2014.
The Kentucky heartbeat bill, HB 132, was introduced in 2011, and, as of February 2, 2013 was postponed in committee.
The Mississippi bill, HB 6, was introduced in January and died in committee in February 2013.
North Dakota HB 1456 was signed into law in March 2013 by Jack Dalrymple, who stated that it was “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade." A federal district court found that it clearly violated the constitutional protections afforded in Roe v. Wade and it was quickly blocked. In July of that year, a lawsuit had been filed with regard to the law by the Center for Reproductive Rights (CRR), on behalf of the only abortion clinic in North Dakota, Red River Women's Clinic. In July 2015, the 8th U.S. Circuit Court of Appeals blocked the bill. The case was appealed to the Supreme Court, but the court denied a writ of certiorari in January 2015 and let the decision of the 8th Circuit Court of Appeals.
In Ohio, a fetal heartbeat law, HB 125, was introduced in the state legislature in October 2011. The bill was shelved by the Republican majority Senate to avoid controversy. This bill was notably supported by Jack Willke. A related law was signed in Ohio in 2013 by John Kasich, which mandates, among other things, that doctors who do not test for a fetal heartbeat must be subject to criminal penalties; specifically, "The doctor’s failure to do so would be a first-degree misdemeanor, carrying up to six months in jail, for the first violation and a fourth-degree felony, carrying up to 18 months in jail, for subsequent violations." A further fetal heartbeat law was introduced on August 14, 2013, by Lynn Wachtmann and others.
A bill similar to the 2011-2012 bill was introduced in 2013, titled HB 248.
On March 25, 2015, another heartbeat bill (House Bill 69) passed the Ohio House of Representatives. The Guardian reported that "The bill is unlikely to go any further, facing stiff opposition in the senate as well as from John Kasich, the Republican governor of Ohio."
On December 6, 2016, the Ohio Senate added a heartbeat ban provision to an unrelated bill, House Bill 493, previously passed by the Ohio House of Representatives. The bill was returned to the House and passed by the House the same day. The bill as passed would make abortion after the detection of a fetal heartbeat a fifth-degree felony except in cases where a physician judges the abortion necessary "to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman." Kasich vetoed this bill.
A fetal heartbeat bill, HB 97, was introduced in the Wyoming House of Representatives in January 2013 by Kendell Kroeker, however in February 2013 the bill was struck down by a house committee in a 4-5 vote.
"Informed consent" laws
A related though distinct type of law is that introduced at the state level in all 50 states in the US in October 2011, which would require any woman seeking an abortion to see and hear their fetus's heartbeat. Supporters included the United States Conference of Catholic Bishops, Americans United for Life, and the Susan B. Anthony List. Another such bill was introduced in Texas, and, after getting approved by an appeals court, was criticized by Sam Sparks, who said, “The concept that the government may make puppets out of doctors, provided it does not step on their patients’ rights, is not one this Court believes is consistent with the Constitution, in the abortion context or otherwise.” A similar type of legislation, the "Heartbeat Informed Consent Act", was introduced at the national level around the same time by Michele Bachmann, however, it died in committee. Another law of this variety, introduced by Sharon Weston Broome, was passed by legislators in Louisiana in 2012, as an amendment to a 2010 bill requiring women seeking an abortion to receive an ultrasound of their fetus. Similar laws have been passed in states such as Georgia in 2005; and a law that mandated both an ultrasound of the fetus and listening to its heartbeat before an abortion could be procured was laid on the table in 2012 in Pennsylvania. This last bill became controversial when Tom Corbett, Pennsylvania's governor, stated that "You just have to close your eyes" and dismissed accusations that the bill would be unnecessarily obtrusive.
There exists some controversy surrounding fetal heartbeat laws because no one is exactly sure when the earliest point is at which a fetus's heartbeat can be detected; when the Wyoming state legislature was debating the bill mentioned above, Norine Kasperik "noted that during the discussion, she heard different answers to when a heartbeat is detectable. To her, there seemed to be variation by medical equipment used." Similarly, Mary Throne inquired, “Is this abortion illegal at 22 days with a highly invasive ultrasound or is it illegal at 9 weeks when we hear a heartbeat with a stethoscope?” Furthermore, some critics of these bills have claimed that they ignore that not all fetuses' heartbeats become detectable at the same time, even when measured using the same methods, since, according to Mother Jones, this varies depending on "the embryo's position in the uterus, a woman's body fat percentage, and a dozen other variables."
On a similar note, the Center for Reproductive Rights has stated that there is some inconsistency with regard to these laws; specifically, "The Arkansas law requires providers to do so with an abdominal ultrasound, and the North Dakota one by any technology available, including a transvaginal probe, which can detect a heartbeat weeks earlier than an abdominal ultrasound." With specific regard to the North Dakota law, detecting a fetus' heartbeat at six weeks into a pregnancy requires the use of a transvaginal ultrasound, which some members of the pro-choice movement say is unnecessarily invasive. Furthermore, while the pro-life movement claims that bills mandating a woman listen to her fetus' heartbeat would increase the likelihood of them changing their mind, the pro-choice community, with the support of the Pennsylvania Medical Society, opposes "informed-consent" bills because they threaten to, if passed, "significantly jeopardize the open dialogue within the physician-patient relationship."
Furthermore, some critics of fetal heartbeat bills say that, since Roe v. Wade established that abortion is legal until the point of viability (between 24 and 28 weeks into the pregnancy), that such bills "blatantly contradict" Supreme Court precedent. As Gov. Beebe put it regarding the Arkansas 12-week ban mentioned above, "In short, because it would impose a ban on a woman's right to choose an elective, nontherapeutic abortion well before viability, Senate Bill 134 blatantly contradicts the United States Constitution, as interpreted by the Supreme Court...When I was sworn in as governor I took an oath to preserve, protect, and defend both the Arkansas Constitution and the Constitution of the United States. I take that oath seriously." That fetal heartbeat bills are unconstitutional is an opinion with which Judge Hovland agreed with regard to the North Dakota law signed by the governor on March 26, 2013. Hovland wrote that the law was “clearly invalid and unconstitutional based on the United States Supreme Court precedent in Roe V. Wade."
"Informed consent" laws requiring women seeking abortions to have the physician play a recording of her fetus' heartbeat have met with challenges in court, notably in Texas, when the CRR filed a lawsuit against it, leading to a court case entitled Texas Medical Providers Performing Abortion Services v. Lakey. Prior to Sam Sparks condemning the law in January 2012, however, a federal district court had ruled that the law violated the First Amendment in August 2011. This decision was reversed by the United States Court of Appeals for the Fifth Circuit, led by Edith Jones. Another similar law was challenged in North Carolina in Stuart v. Huff, in which a federal district court ruled that the law was in violation of the First Amendment. This case, unlike the one in Texas, has not yet been appealed. This has led to some debate among different pro-life/anti-abortion groups regarding strategy; specifically, while some of these groups, like the Kansas Coalition for Life, have supported the passing of this legislation, others, like Kansans for Life, are concerned that "enacting a fetal heartbeat ban would prompt a court ruling undoing some limits on abortion and providers." Likewise, Paul Linton, former general counselor for AUL, has argued that fetal heartbeat laws "have no chance in the courts." He, like most mainstream anti-abortion advocates (including James Bopp), prefers instead a legislative strategy that chips away at Roe v. Wade.
- The figure of "six weeks" is frequently quoted in the media. According to the Endowment for Human Development, a fetus's heart begins to beat 22 days into the pregnancy. However, some uncertainty remains as to when this heartbeat can be detected, as it depends on the method used. If a transvaginal ultrasound is used, the heartbeat can be detected in about 60% of pregnancies between 8 weeks and 8 weeks and 6 days' gestation.
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Sec. 2919.195. (A) Except as provided in division (B) of this section, no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the unborn human individual the pregnant woman is carrying and whose fetal heartbeat has been detected in accordance with division (A) of section 2919.192 of the Revised Code. Whoever violates this division is guilty of performing or inducing an abortion after the detection of a fetal heartbeat, a felony of the fifth degree. (B) Division (A) of this section does not apply to a physician who performs a medical procedure that, in the physician's reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. A physician who performs a medical procedure as described in this division shall declare, in a written document, that the medical procedure is necessary, to the best of the physician's reasonable medical judgment, to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. In the document, the physician shall specify the pregnant woman's medical condition that the medical procedure is asserted to address and the medical rationale for the physician's conclusion that the medical procedure is necessary to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. A physician who performs a medical procedure as described in this division shall place the written document required by this division in the pregnant woman's medical records. The physician shall maintain a copy of the document in the physician's own records for at least seven years from the date the document is created. (C) A person is not in violation of division (A) of this section if the person acts in accordance with division (A) of section 2919.192 of the Revised Code and the method used to determine the presence of a fetal heartbeat does not reveal a fetal heartbeat. (D) Division (A) of this section does not have the effect of repealing or limiting any other provision of the Revised Code that restricts or regulates the performance or inducement of an abortion by a particular method or during a particular stage of a pregnancy.
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