TPM Cafe: Opinion

Michigan’s Heartbeat Bill May Actually Be Good For Abortion Rights

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AP Photo / CHARLES DHARAPAK

Despite the fact that no state has ever successfully put a heartbeat abortion ban into action, some anti-abortion advocacy groups can’t help but urge their lawmakers to draft and introduce the bills anyway. Now, Michigan is jumping into the fray with HB 5644, a companion bill to the new mandatory ultrasound bill, and which would make it illegal to perform an abortion if an embryonic heartbeat has been detected.

Heartbeat bans have been a fairly recent and enormously unsuccessful foray into pre-viability gestational abortion bans. Unlike so-called “fetal pain” bills, which ban abortion just a few weeks prior to the constitutional barrier set at fetal viability, Heartbeat bans hack away at the viability standard all together in an attempt to redefine that medical term.

To anti-abortion advocates, “viable” should no longer be the point in which a fetus can survive outside of the womb, but should be the point in which, as long as it is left alone to grow, an embryo should successfully grow into a living baby with a successful delivery, as opposed to ending in a miscarriage or a stillbirth.

In other words, as long as there is a heartbeat, it is a “viable” baby.

With a heartbeat detectable often as early 21 to 28 days after conception, heartbeat bans are as close as anti-abortion activists can get to making abortion fully illegal without directly banning it. Implantation of the fertilized egg into the uterus (which must occur before the body will start producing the hormones that register on a pregnancy test) doesn’t happen until seven to 10 days after fertilization occurs, sometimes even as late as 14 days. Because the hormone doubles roughly every 48 hours, it can take even the most sensitive urine based tests another four to eight days to register a pregnancy. By the time the menstrual cycle is delayed, a person is already at least 14 days into a window that allows at best 28 days for her to discover she is pregnant, set up an appointment, work through any mandated informed consent and waiting periods, and then finally have the abortion done.

Add to the mix the number of clinics that have been closed and the fact that some states have extended waiting periods from hours to days, and you can see why a heartbeat ban is a tempting law for those who want to ban abortion without doing it outright.

It’s for all of those reasons, however, that no heartbeat bans have ever been enforced, even on the rare occasions that they do pass. States like Kansas, Mississippi and even Ohio — the birthplace of the original heartbeat ban — have seen their bills blocked in the legislature, often at the request of anti-abortion lawmakers and Right to Life state groups themselves. In states where they have been signed into law, they have been subsequently blocked in the courts. Both the traditional heartbeat ban in North Dakota and the less restrictive 12-week amended version in Arkansas have been blocked from being enforced by federal courts.

The bills are highly unconstitutional, expensive to defend, and impossible to actually put into practice thanks to the intervention of the court. As a result, they are one of the best proposals for reproductive rights activists, something to which even abortion opponents admit.

In Ohio, where local anti-abortion group Faith2Action has been trying to get their own heartbeat ban up for a senate vote since 2011, their biggest opposition has come not from local pro-choice groups but from Ohio Right to Life. The state National Right to Life affiliate told legislators that allowing the bill to become law could offer an opportunity for a case to make it to the Supreme Court that might affirm, rather than overturn, Roe v. Wade, and make it that much harder for the movement to end legal abortion in the long run.

A Michigan heartbeat ban would do the same, which is no doubt why Michigan Right to Life has been tepid in its support of the proposal.

But a Michigan heartbeat ban is good news for local reproductive rights advocates beyond just the unlikelihood of it ever being put into action. For one thing, it serves as a reminder to the people of Michigan of both how extreme and intrusive anti-abortion state lawmakers really are as they not only try ban nearly all abortion in the state, but also that they have no qualms about wasting taxpayer money in an attempt to do it. (Wasting it not only in needless legislative costs but also in court fees.)

It’s a message that reproductive-rights-friendly politicians need to jump on and embrace as they promote their own effort to roll back the state’s offensive and extremist “rape insurance” rider law that currently bans medical insurance plans from paying for abortions of those impregnated as a result of a sexual assault, unless a person has purchased an additional rider for abortion coverage. Those who want to force rape victims to give birth against their will if they cannot afford an abortion are the same people who want to ban abortion within a week or two of a missed period, making it clear that their intention isn’t “protecting taxpayers from paying for abortion” but to ensure every pregnancy ends in a live birth, regardless of the desire of the person carrying that pregnancy.

The extremism behind a Michigan heartbeat ban doesn’t just help pro-abortion rights legislators with their attempt to undo that piece of legislation, but also signals that other abortion bans that may have been on the docket won’t be proposed at all. One pool of anti-abortion activists in Michigan have been seeking support for a 20 week “fetal pain” ban proposal of their own, meeting since the beginning of 2013 to develop a potential bill.

The effort, lead by activist Monica Migliorino Miller, Director of Citizens for a Pro-Life Society and author of Abandoned: The Untold Story of the Abortion Wars, was only in the “research and discussion” stage, according to Miller, but may move to the back burner with a heartbeat ban taking the stage.

To Miller, there is no downside to a heartbeat ban being introduced and debated, even if, as she herself believes, it’s probably unlikely to pass both chambers.

“Even if the Representative Hooker's bill doesn't pass this session – there is great merit in pushing it forward,” Miller said via email. “The battle to protect the lives of the unborn is not only about getting laws passed, it is about education, it is about drawing attention to the plight of the unborn. Every unborn child killed by abortion is alive, every unborn child killed by surgical abortion has a human heart stopped by a terrible act of violence. Advocating such a fetal heartbeat law cultivates awareness that the unborn are members of the human family who have a right to be accepted and protected without discrimination.”

“We support this bill and will continue to work for the day when the boundaries of justice are be expanded to include the unborn – a justice that fetal heartbeat laws seek to put into place,” Miller added.

With even those who support a heartbeat ban admitting the bill is more for holding a debate than passing a law, this makes a heartbeat ban the perfect vehicle to educate voters on how out of the mainstream the legislature has become on the subject of reproductive rights and access.

That’s a debate all pro-choice legislature should be ready – and eager – to take advantage of.

Robin Marty is a freelance writer, speaker and activist, and the author of Crow After Roe: How Women's Health Is the New Separate But Equal and How to Change That. Robin's articles have appeared at Rolling Stone, Bitch Magazine, Ms. Magazine, In These Times, Truth Out, AlterNet, RH Reality Check and other publications.