Law & the Courts

GOP Legislatures, Throw Down the Gauntlet — Pass Heartbeat Bills

Cardiotocography is used during pregnancy to monitor the fetal heartbeat as Sabine Heinrich and her husband Philipp Beck wait for the birth of their second baby in Germany, January 11, 2013. (Michaela Rehle/Reuters)
Are we the pro-life movement or the less-death movement?

It’s time to decide. Is the aim of the political wing of the pro-life movement to nibble at the edges of the American abortion culture or to confront it head-on? Iowa has made its choice. So has Kentucky. And today Mississippi joined the growing ranks of American states who have unequivocally declared that Roe v. Wade is fundamentally incompatible with the Constitution and their community’s values. Each of these states has passed a heartbeat bill that bans virtually all abortions after a fetal heartbeat is detected. More states should join them.

Incrementalism had its day, but if the political pro-life movement devolves into little more than the effort to pass various restrictions that merely moderate the abortion-on-demand regime, making it less messy and brutal, then debates about abortion are quite frankly far too prominent in American politics. The battle is over degrees of support for the killing of a child in the womb, not over its ultimate legality.

If that’s the case, then our judicial wars are overwrought, and our political fights are exaggerated. It matters whether late-term abortion is legal, and it certainly matters whether abortion clinics are safer and cleaner and staffed with competent professionals (matters for the mother, at least), but a pro-life movement (or, more accurately, a less-death movement) can accomplish those goals without reversing Roe. Slight tweaks to the “undue burden” jurisprudence of Planned Parenthood v. Casey is all it will take to stop abortions after 20 weeks — while leaving the right to 98.7 percent of abortions intact.

But if a movement is truly pro-life, and a majority of the state’s voters want to protect and foster a culture of life, then it’s time — it’s time to throw down the gauntlet, declare to the world (and to the Court) that the era of incrementalism is over, and show that the people are ready to embrace life. It’s time for more GOP legislatures to pass heartbeat bills, bring them to the Supreme Court, look the justices in the eye, and ask them to correct one of the Court’s most dreadful and consequential mistakes.

Yesterday — on the eve of the enactment of the Mississippi bill — the New York Times published an editorial condemning the fact that heartbeat bills have been introduced in a dozen states. Its critique contains a seed of truth: Heartbeat bills are different in kind from the abortion restrictions that have thus far dominated red-state lawmaking. Rather than merely regulate the practice, they would “make it all but impossible for nearly all women to get the procedure.” The only way to uphold a heartbeat bill is to overturn Roe and Casey.

And that’s entirely the point.

For a long time, the pro-life movement has been committed to incrementalism because incrementalism was all it had. There were no prospects of Roe’s reversal, and the only way to respond politically to abortion-on-demand was to chip away at the right rather than to swing with a sledgehammer. But pursued long enough, incrementalism has its own costs. It cultivates a degree of comfort with the persistence of abortion in American culture, and it sends a clear message to the judiciary that there is no true public outcry against the fundamental right to kill a child.

In fact, incrementalism ultimately encourages judicial caution. Why overrule Roe for the sake of allowing a state to require that abortion doctors have admitting privileges at local hospitals? Just expand Casey. Why overrule Roe for the sake of preventing a small fraction of abortions? Just expand Casey. A demand to overrule Roe in the face of incrementalism is a demand that judges be bold even as legislatures remain cautious. Indeed, the most likely outcome of continued incrementalism is a virtual guarantee of more Roe no matter how much the Court’s composition changes.

But there’s a change in the cultural winds. We’re on the cusp of a cultural moment. The Tennessee and Georgia houses have both passed their own bills, and if they can make it through their senates and governors, they’ll collectively create a large, geographically contiguous slice of America that has declared an intention to be virtually abortion-free. This declaration doesn’t just represent a legal tactic (though it most assuredly has legal ramifications), it represents a statement of moral intent. It looks at the monstrous reality of abortion and rejects the less-death approach of incrementalism in favor of a true embrace of unborn life, a radical change from the status quo.

American states have different cultures and different values. As disheartening as it was to hear the thunderous cheers in New York when it passed a law expanding the right to grisly late-term abortions, it is deeply encouraging to know that not all Americans agree. Is there not room for an abortion-free zone in the United States of America? Can’t some of its communities take steps to protect their most vulnerable members?

I do not question the value of incrementalism in fighting important cultural battles. But we can be under no illusion that incrementalism will ultimately end abortion. It can and does save lives, but it also leaves the core of the abortion right untouched. We can no longer be comfortable fighting only for small changes. If the Court is going to reaffirm Roe, make it defy the will of millions, expressed through their elected representatives, for the sake of a precedent that has no basis in the text or intent of the Constitution.

And if it does reaffirm Roe, then may God have mercy on this nation. But it’s time to try for justice. It’s time for clarity. Keep passing heartbeat bills and send them straight to the courts. Let’s see what the justices do with a real plea for life.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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