Heartbeat Abortion Bills Were Once a Fringe Idea. Could They Overturn Roe v. Wade?
A third state is poised to enact a heartbeat bill. Ten more are considering them.
When anti-abortion activist Janet Porter first introduced the idea of a “heartbeat” bill in 2011, she was almost laughed out of the room. The proposal—to ban abortion after a fetal heartbeat could be detected, or at about six weeks gestation—was so extreme that many of her fellow Republicans thought it was impossible.
A decade later, GOP lawmakers around the country are rushing to adopt Porter’s signature legislation, in hope of forcing the conservative-majority U.S. Supreme Court to re-examine Roe v. Wade. Georgia is poised to become the third state to enact such a ban in the first three months of 2019 alone. Ten other states are currently considering the legislation, which experts say would ban abortions before most women know they are pregnant.
The legislation is almost certainly a violation of Roe, the 1973 Supreme Court decision that legalizes abortion around the country. But with Trump in the White House and a conservative majority on the Court, some state legislators don’t seem to care.
“This year is completely unlike any year that we’ve seen,” Elizabeth Nash, senior state issues manager for the Guttmacher Institute, told The Daily Beast. “Six-week abortion bans are getting traction and flying through state legislatures… The levels of attention that these bills are getting is unprecedented.”
The heartbeat ban was pioneered by Porter, 56, a veteran of the anti-abortion movement and an enemy of what she calls the “radical homosexual agenda.” She started as legislative director at Ohio Right to Life and later moved to the Center for Reclaiming America, where she took out full-page newspaper ads featuring “former homosexuals” who “overcame” their sexual orientation through conversion therapy. More recently, she served as spokeswoman for failed Senate candidate Roy Moore, defending him against allegations of child molestation.
In her free time, Porter wrote regular columns for World Net Daily spreading birther conspiracies about Barack Obama, and produced a full-length rom-com about her experience advocating for a federal ban on abortions. She also hosted a daily radio show on an evangelical network, but was booted in 2010 for allegedly spreading “dominionism”—a theology that promotes the Christian takeover of government institutions.
It was shortly after her radio career ended that Porter drafted her signature legislation—a bill she said was crafted to be “the arrow in the heart of Roe v. Wade.” But when the heartbeat bill was first introduced in her home state of Ohio, by Rep. Lynn Wachtmann, it served more to divide Republicans than unite them. Even Ohio Right to Life—the anti-abortion advocacy group where Porter started her career—opposed the legislation, saying it would never make it past the nation’s highest court.
“The courts are going to block it,” Michael Gonidakis, executive director of Ohio Right to Life, said at the time. “It will not save one baby’s life.”
When the bill stalled in the Republican-dominated Senate, Porter resorted to extreme tactics, bringing in pregnant women to have their fetuses “testify” via ultrasound and flooding the statehouse with bouquets of roses. (A note accompanying the bouquets read: “Bring this bill to a vote before the roses and babies die.”) When those strategies didn’t work, Porter went on the offensive, claiming GOP senators were responsible for the loss of “more than a school bus full of children every day.”
The tactics backfired. Senate President Tom Niehaus responded with an op-ed condemning Porter’s organization for making “exaggerated and inflammatory statements,” and refused to hold a vote on the bill. In 2013, when Wachtmann re-introduced the legislation, the House scheduled a vote but failed to pass it—something Gabriel Mann of NARAL Ohio said he’d never seen in his two decades in state politics.
“If a bill is going to fail they don’t bring it to the floor for the vote,” Mann told The Daily Beast. “I think they were trying to make a statement.”
And while Porter said she had distributed the legislation to other, more conservative states, it was apparently too contentious for those lawmakers, too. Just three heartbeat bans were enacted between 2013 and 2019, in Arkansas, North Dakota and Iowa. All were blocked by federal courts before they could take effect.
State legislatures might have rejected Porter’s initiative, but they had an anti-abortion strategy of their own. Between 2011 and 2019, states passed more than 400 other restrictions on abortion. Ohio alone enacted 21 restrictions between the time the first heartbeat bill was introduced and today. But most of these laws took the “incrementalist” approach favored by groups like National Right to Life and Americans United For Life—measures like mandatory waiting periods and admitting privileges for providers, which restricted access to abortion but didn’t directly violate Roe.
That was no accident: These groups knew that passing an overly restrictive law could trigger a Supreme Court challenge—a risk they weren’t willing to take at the time. Steven Aden, AUL’s general counsel, said as much in a recent interview with CNN, where he acknowledged that heartbeat bans are “unconstitutional under current federal constitutional law.”
“With all the respect I can muster to my many friends in the heartbeat movement, no heartbeat bill anywhere has ever saved a human life because, to my knowledge, they’ve all been struck down by federal and state judges—and that was predictable,” he said.
Trump’s election changed that calculus. With the appointment of Justices Neil Gorsuch and Brett Kavanaugh, the Supreme Court gained a conservative majority for the first time since 1969, and state legislatures began lining up to pass laws restrictive enough to trigger a challenge to Roe. Damon Thayer, the Kentucky State Senate majority leader, told reporters earlier this year that provoking the overturn of Roe v. Wade would be “absolutely the pinnacle of my career in the Legislature.”
With that new goal in mind, the heartbeat bill was revitalized. In Ohio, Senate President Larry Obhof—whom Porter once ran against after he refused to support the heartbeat bill—now says passing it is one of his top priorities. And unlike former Gov. John Kasich, incoming Gov. Mike DeWine says he’s prepared to sign the bill as soon as it gets to his desk. Even Ohio Right to Life, which opposed Porter’s legislation for nearly seven years, has come around.
“At the time [the bill] was introduced it was the right idea at the wrong time,” Ohio Right to Life President Mike Gonidakis told The Daily Beast this week. “Fast forward, President Trump’s elected, he put Gorsuch and Kavanaugh on the court. We don't think it’s a slam-dunk pro-life court, but we think it’s the best court we’ve had in a generation, so now’s the time to try the heartbeat bill.”
And the legislation isn’t stopping there. Nearly a quarter of all U.S. states have passed or taken up heartbeat legislation this year, according to researchers at the Guttmacher Institute—an increase of more than 60 percent over the same time last year. Even more states have pre-filed similar bills. If Georgia’s governor signs the legislation, the number of heartbeat bans enacted in 2019 will be equal to the previous five years combined.
As the heartbeat ban’s star has risen, so has Porter’s. Shortly after Trump’s election, photos surfaced of the activist hobnobbing with Vice President Mike Pence at the White House. Members of Porter’s advocacy group met with nearly 300 U.S. Congress members in 2017 and hosted a Heartbeat Bill Banquet for nearly 50, according to fundraising emails obtained by The Daily Beast. (The emails also claim Trump supports the heartbeat bill.)
Rep. Steve King—the same lawmaker ousted from his committee seats over his comments on white supremacy—introduced a federal version of the legislation in 2017. The bill has been stalled in committee for two years, but has more than 170 co-sponsors. At a subcommittee hearing, King harkened back to Porter’s early tactics, displaying a pre-recorded ultrasound of what he claimed was the “youngest person to testify before Congress.”
In a conference call this week, reproductive rights advocates from Planned Parenthood, the Guttmacher Institute and over groups fretted over what would happen if the heartbeat bills continued to spread. Planned Parenthood litigation president Helene Krasnoff said they were prepared to fight these bills through the courts, but noted that—with Trump’s record number of judicial nominees—the judicial branch was not the backstop it once was. Other experts noted that six states had already passed “trigger bans” that would immediately outlaw abortion if Roe is overturned, leaving an estimated 25 million women in states without abortion access.
“Abortion opponents aren’t about restriction anymore,” Nash said in the call. “It really is about banning abortion at any point during pregnancy and for any reason.”
Back in Ohio, Mann was preparing for a Senate hearing on a bill that would require aborted fetal tissue to be buried or cremated. Ohio lawmakers had already passed a version of the heartbeat bill without exceptions for rape or incest earlier that month. The advocate said he was simply flabbergasted by what his state had set in motion.
“It is really disgusting that this thing that at one time in Ohio was just kid of a crazy circus that not even the establishment took seriously now has spread like a cancer to other states,” he said. “That really grosses us out here.”