The Corner

Law & the Courts

Federal Judges Block Heartbeat Bills in Tennessee and Georgia

Women protest Georgia’s “heartbeat bill” at the Georgia State Capitol in Atlanta, Ga, May 7, 2019. (Elijah Nouvelage/Reuters)

Earlier this week, Tennessee governor Bill Lee signed a “heartbeat bill” prohibiting abortion after a fetal heartbeat can be detected, which can occur as early as six weeks into pregnancy. The law makes Tennessee one of a dozen states to have enacted such a bill, most of which were signed at some point last year.

But less than an hour after the law took effect in Tennessee, a federal judge blocked it, issuing a temporary restraining order against the policy in response to a lawsuit from the ACLU, Planned Parenthood, and the Center for Reproductive Rights.

“Plaintiffs have demonstrated they will suffer immediate and irreparable injury, harm, loss, or damage if injunctive relief is not granted pending a preliminary injunction hearing,” wrote U.S. district judge William L. Campbell.

“The Act will immediately impact patients seeking abortions and imposes criminal sanctions on abortion providers,” Campbell added. “The time-sensitive nature of the procedure also weighs in favor of injunctive relief pending a preliminary injunction hearing.”

This ruling is the second time this week alone that a federal judge has ruled against a heartbeat bill. In Georgia, U.S. district judge Steve C. Jones permanently blocked the state’s version of the law, writing that, “by prohibiting a woman from terminating her pregnancy upon the detection of a fetal heartbeat, [the law] constitutes a pre-viability abortion ban.”

“As this ban directly conflicts with binding Supreme Court precedent (i.e., the core holdings in Roe, Casey, and their progeny) and thereby infringes upon a woman’s constitutional right to obtain an abortion prior to viability, the Court is left with no other choice but to declare it unconstitutional,” Jones added.

These decisions aren’t surprising to anyone who has followed the controversy over heartbeat bills, which, one by one, judges have temporarily blocked or permanently struck down after determining that they contradict prevailing abortion jurisprudence. Though disappointing to pro-lifers, these legal challenges and the judicial responses have revealed the flaws in our status quo on abortion policy.

Last year, as states passed heartbeat bills that were subsequently and unilaterally blocked in federal courts, a number of Democratic states were busy passing abortion legislation, too. New York enacted a law allowing abortion for any reason up to 24 weeks’ gestation (after fetal viability) and altering regulations to allow women to more easily obtain an abortion until birth. Virginia Democrats contemplated a similar bill that, per its sponsor, would’ve allowed elective abortion even during labor. Illinois, Vermont, Rhode Island, and Maine enacted a variety of extreme abortion bills, some enshrining the right to unlimited abortion in the state constitution, some declaring elective abortion at any stage of pregnancy a “fundamental right,” and some repealing state bans on partial-birth abortion.

Not a single one of those laws faced a legal challenge. And how could they? While judges wield Roe and Casey to prevent pro-life citizens from protecting unborn children even after viability — despite the fact that both decisions explicitly acknowledged the state’s interest in doing so — our current jurisprudence does nothing to prevent abortion advocates from loosening restrictions on the procedure to allow elective abortion until birth.

This is a highly unjust status quo considering that the jurisprudence enabling it stems from the anti-constitutional ruling in Roe, a decision that both opponents and supporters of legal abortion admit was poorly reasoned — yet decades of case law are built on that shaky foundation. This is the foremost reason that, instead of resolving the fight over abortion, the Court in Roe cemented it as the most contentious, most persistent policy debate in America.

Heartbeat bills may not have been immediately successful in protecting unborn human life, but they might be deemed a success on two counts. First, they present courts with opportunities to reconsider the heart of our flawed system by directly contradicting the cases that dictate abortion law. Though it likely will require getting such a case before a friendly Supreme Court to actually undo those flawed decisions, that day will never come if pro-life legislators abandon the effort entirely.

Second, they have fostered a conversation about abortion that plays to the strengths of the pro-life cause. Given that the most popular abortion-rights arguments are fallacious claims such as that a fetus is “a clump of cells” or “part of its mother,” talking about the fetal heartbeat — and the fact that it begins so early in pregnancy — helps raise public consciousness of human life in the womb.

It’s clear that supporters of legal abortion fear this strategy; they spent much of last year insisting that reporters refer to fetal heartbeats as “fetal pole cardiac activity” or “embryonic pulsing.” (Most major media outlets, it is worth noting, went right along.) Even though heartbeat bills haven’t yet been permitted to take effect, they have helped expose the way in which abortion supporters dehumanize what is clearly a distinct, vulnerable, living human being.