The Oklahoma and Idaho legislatures this week became the 12th and 13th states to pass heartbeat bills that prohibits abortionists from terminating a pregnancy once a baby’s heartbeat can be detected, which typically occurs at six to eight weeks’ gestation. The Oklahoma governor is expected to sign the bill into law while the Idaho governor is being urged to do so by pro-life activists.
HB 2441 was passed by the Oklahoma House of Representatives in March by a vote of 80-19, and this week passed the Senate by vote of 37-10.
In Idaho, SB 1085 was just recently passed in the state Senate following passage in the House, and it is headed to the governor for a possible signature.
The only exception to the Oklahoma bill’s prohibitions would be “to avert [the mother’s] death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.” Idaho’s bill contains exceptions for medical emergencies, rape and incest.
The Idaho bill contains a unique feature not contained in the Oklahoma bill: It does not take effect until a court in the U.S. declares another heartbeat bill constitutional. The probable intent behind that provision is to stave off the inevitable rush to the courthouse by abortionists to get the law blocked by court order.
Oklahoma and Idaho join 11 other states – Alabama, Arkansas, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio and South Carolina – that have previously passed such a law. The Texas legislature is currently considering its own version.
In all of the examples cited where the legislation has been successfully passed, those heartbeat bills have been blocked in the courts, which cite Roe v. Wade as limiting the ability of states to completely restrict abortion prior to viability. “Viability” is generally understood to occur between 24 and 28 weeks after the start of a woman’s last menstrual period, though babies have survived as young as 21 weeks.
Passing these bills may appear futile to the casual observer, given the negative treatment they have received to date in the courts, but pro-life states have a couple reasons for passing them.
First, they hope and intend that the sheer number of states willing to support the life of preborn babies will send a message to the U.S. Supreme Court that its 1973 abortion precedent in Roe subverted the democratic process already occurring in the states for determining this issue. Roe did not “settle” the issue for the American public once and for all, as its supporters had hoped.
Second, pro-life states envision that one of these heartbeat bills will make it on appeal to the U.S. Supreme Court one day and create the perfect vehicle for reconsidering and overruling Roe. On April 2, for example, South Carolina officials announced they were appealing an adverse lower court ruling against their heartbeat bill to a federal appeals court.
However, there is already a pending case over a slightly different version of an early abortion ban that could also serve as an opportunity for the nation’s high court to once and for all overturn Roe.
The U.S. Supreme Court has delayed responding to a petition to address the constitutionality of Mississippi’s 15-week ban on abortion filed last June. No explanation has been provided by the high court for its continued silence in that case. But it could still decide to hear that case, and the impact will be felt across the nation.
If the high court eventually overturns Roe, the issue of abortion will once again become an issue for legislation at the state and/or federal level rather than for courts to determine. It is in those state legislatures, those “laboratories of democracy,” as Justice Louis Brandeis once called them, where various resolutions derived through compromise and representative democracy can play out as the Framers of the Constitution envisioned.
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