The “fetal heartbeat” in US abortion laws speaks to emotions, not science

NASHVILLE-Dr. Michael Cackovic has covered his share of pregnant women. When Republican lawmakers in the US began enacting abortion bans at what they call “the first detectable fetal heartbeat,” he was angered.

That’s because by the time the advanced technology can detect the first flutter at just six weeks, the embryo isn’t a fetus and doesn’t have a heart.

“You can’t hear this ‘fluttering’, it can only be seen on an ultrasound,” said Cackovic, a maternal fetal medicine specialist at Ohio State University’s Wexner Medical Center, where about 5,300 babies are born each year.

But bans tied to the concept of the “fetal heartbeat” have been signed into law in 13 states, including Cackovic’s home state of Ohio. None have come into force, and all but the most recently enacted have been struck down or temporarily blocked by the courts. Now one of the most restrictive, signed into law by Republican Tennessee Gov. Bill Lee last year, goes before the US Sixth Circuit Court of Appeals on Thursday.

Proponents of these so-called “Heartbeat Bills” are hoping for a legal challenge, eventually reaching the US Supreme Court, where they are seeking the conservative coalition assembled under President Donald Trump to end constitutional abortion rights established by the 1973 milestone of the U.S Supreme Court protected Roe v Wade verdict.

The notion that an abortion as early as six weeks of pregnancy “stops a beating heart” was arguably the political stroke of genius that eventually helped the measures override lingering constitutional concerns in the states that supported them .

The originator of the concept, Ohio-based anti-abortion activist Janet Folger Porter, spoke candidly about her strategy in an email to supporters last year — cleverly avoiding whether the bill’s packaging was medically true.

“The slogan ‘Abortion stops a beating heart’ has long been a powerful tool to highlight the injustice and inhumanity of abortion,” Porter wrote of the state’s law, the Ohio Heartbeat Protection Act.

And she found that hearts were easy to market.

During the decade-long struggle to get Ohio’s law passed, Porter punctuated her lobbying with heart-shaped balloons and teddy bears. She urged supporters to “take heart” when faced with obstacles – and implored lawmakers to “have heart” and vote “yes” despite their constitutional concerns.

Then Republican Gov. John Kasich twice vetoed Ohio’s Heartbeat Bill, citing constitutional problems. His GOP successor, Gov. Mike DeWine, signed it in 2019 amid a spate of similar bills that year.

For now, abortion remains legal in all 50 states, although 43 have some sort of limitation on the procedure after a fetus becomes viable outside the womb, generally between 24 and 28 weeks.

John Culhane, a law professor at Widener University who co-directs the Family Health Law and Policy Institute, said the anti-abortion lobby’s marketing of the Heartbeat Bill legislation was “all an attempt to make a person out of a fetus.”

“The ‘heartbeat’, it literally tugs at your heart, it makes you feel, ‘Why would you do that?’ It doesn’t matter that there isn’t a heart in the embryo yet, he said.

However, lawyers are quick to point out that medical inaccuracy is not a legal argument.

“Legislators are free to define things however they want and give them the force of law,” said Andrew Koppelman, a law professor at Northwestern University. “The reality of medical science is not a limitation on what a legislature can do. What is a limitation on what a legislature can do is women’s constitutional rights.”

In the war of words over abortion, however, there have been battles over politically charged, imprecise, or vague terminology in abortion laws before.

“Dismemberment abortion” is a term used by anti-abortionists to describe dilatation and evacuation, a common second-trimester abortion method. They use “partial abortion” to describe what is medically called intact dilatation and extraction.

Abortion rights groups refer to Heartbeat laws as “six-week abortion bans,” although the bills make no mention of such a duration.

“It’s very common to use non-medical language to speak publicly about a medical procedure,” said David Cohen, law professor at Drexel University’s Kline School of Law.

“The law needs precision to know exactly what is being regulated,” Cohen said. “So in medicine it would be to use medical terminology.”

Cackovic, the fetal medicine specialist, said the current “heartbeat laws” are based only on “our amazing technological advances” that make it possible to detect the earliest signs of embryonic heart activity, “and nothing else.”

For example, a groundbreaking 2013 study from the University of Leeds found that while four clearly defined chambers appear in the human heart by the eighth week of gestation, they remain “a disorganized jumble of tissue” until around week 20, much later than previously expected .

Opponents of abortion see it differently, considering the use of antiseptic medical terms to describe what happens during pregnancy as a political tactic in its own right.

The hosts of CareCast, a podcast sponsored by the anti-abortion nonprofit Care Net, last year called on news outlets to use terms like “pulsating” or “fetal cardiac activity” instead of “heartbeat,” accusing them of “euphemisms.” ” and “verbal gymnastics” to dehumanize the unborn.

“They’re literally inventing new ways to talk about a heartbeat so they can try not to attribute any human characteristics to the fetus,” said Vincent DiCaro, the group’s chief outreach officer. President and CEO Roland Warren claimed that abortion rights groups use medical terms to maximize “the atrocities” against human life. He equated it with the dehumanization of the Jews by the Nazis.

Culhane said vague or imprecise language could be a powerful argument in court against “heartbeat laws” — should the fight ever get beyond the laws’ impact on a woman’s constitutional right to have an abortion.

“These days, the courts are very vigilant when it comes to reviewing laws to make sure they provide guidance on exactly what behavior is prohibited,” said the Widener University law professor.

“Because we don’t want people to have to guess and then realize they’re on the wrong side of the law.”

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Smyth reported from Columbus, Ohio

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