Idaho has enacted a law prohibiting abortions after an unborn child’s heartbeat can be detected, which is usually possible at about six weeks’ gestation. Republican governor Brad Little has signed the Fetal Heartbeat Preborn Child Protection Act, making it a felony to perform an abortion after that point and punishing abortionists who violate the law with up to five years in prison.
The enactment of the heartbeat bill has made Idaho one of more than a dozen states to institute a law protecting unborn children after the point at which a fetal heartbeat can be detected using ultrasonography.
Beginning in 2019, a large group of states passed such bills, including Georgia, Kentucky, Louisiana, Mississippi, Ohio, and Tennessee — a direct response from pro-life lawmakers to states such as New York, Virginia, Illinois, and Rhode Island, where Democratic politicians had passed or proposed legislation expanding access to elective abortion throughout all nine months of pregnancy.
Earlier this year, South Carolina also enacted a heartbeat bill, which, like the heartbeat bills in these other states, was immediately blocked by a federal judge after facing a legal challenge from abortion providers and abortion-advocacy organizations.
In her order temporarily blocking South Carolina’s law while the challenge proceeded, Judge Mary Geiger Lewis argued that the plaintiffs would likely succeed in their claim that the bill is unconstitutional. Lewis asserted that “plaintiffs’ patients are likely to suffer irreparable injury absent a preliminary injunction.”
If the history of the past two years is any indication, Idaho’s heartbeat bill is likely to meet a similar fate before the month is out. While unsurprising, such an outcome is a harsh reminder that, under existing abortion jurisprudence, judges consider nearly all state limitations on abortion or regulation of abortion providers to be in violation of constitutional law.
Some pro-lifers argue that one of these states’ heartbeat bills might serve as a useful way to instigate a case that could travel to the Supreme Court, creating the vehicle through which the Court might reinterpret or overturn existing abortion jurisprudence such as Planned Parenthood v. Casey (1992) and Roe v. Wade (1973) to allow states to regulate abortion or, in the view of some pro-life legal scholars, perhaps even to declare abortion unconstitutional.
In the meantime, heartbeat bills remain a valuable component of the pro-life movement’s essential cultural battle, which they must fight in tandem with ongoing legal and policy work, forcing the public to remember and acknowledge that each abortion ends the life of a distinct, living human being.