6 weeks

What banning abortion at 6 weeks really means

So-called heartbeat bills ban nearly all abortions.

By Anna North

Texas Gov. Greg Abbott on Wednesday signed a bill that would ban abortions as soon as a fetal heartbeat can be detected. That’s as early as six weeks’ gestation, before many people know they are pregnant, making the bill a de facto ban on nearly all abortions.

The law contains an exception for medical emergencies, but no exceptions for cases of rape or incest.

“Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” Abbott said in signing the bill. “The heartbeat bill is now law in the Lone Star State.”

So-called heartbeat bills are not new. At least eight have passed in recent years, with a raft of states enacting the bans in 2019. No heartbeat bills have gone into effect, however — they have faced court challenges since they run directly counter to Roe v. Wade, the landmark 1973 decision that established the right to an abortion in America.

But the Texas bill includes a new provision that supporters think could help it evade legal challenges — it essentially empowers private citizens to enforce the law by suing abortion providers, whether or not those citizens are connected to a patient, according to the Texas Tribune. Some believe this could help protect the law in court by removing the state from the equation, making it harder for abortion-rights groups to sue state officials.

Meanwhile, Roe v. Wade itself is now at risk. The addition of Justice Amy Coney Barrett last year was widely seen as tipping the balance on the Court in favor of overturning Roe. And this week, the Court announced it would hear Dobbs v. Jackson Women’s Health Organization, a challenge to a 15-week abortion ban in Mississippi that could provide an opportunity to strike down the 1973 decision. That could pave the way for states like Texas to ban abortion at six weeks — or even earlier.

The Texas law, which goes into effect in September, won’t have an immediate impact on Texans’ ability to get an abortion; it is all but certain to be challenged in court. But it signals a renewed willingness among anti-abortion lawmakers to pass sweeping restrictions on abortion, perhaps looking ahead to a time when those restrictions will get a green light from the Supreme Court.

“Heartbeat” bills ban abortion very early in pregnancy

Heartbeat bills around the country are based on model legislation written by Faith2Action, which bills itself as “the nation’s largest network of pro-family groups.”

“While not the beginning of life, the heartbeat is the universally recognized indicator of life,” the group states in an FAQ on its website.

The model legislation says that if a patient is seeking an abortion, the doctor must first determine whether the fetus has a heartbeat. If a heartbeat is present, the doctor is prohibited from performing an abortion, unless it is necessary to save the mother’s life or “to prevent a serious risk of the substantial and irreversible impairment of a major bodily function.”

The bills generally do not cite a specific gestational time limit for abortions, which has led to some debate. Reproductive rights groups say the bills amount to a ban on abortion at about six weeks’ gestation. That’s when a doctor can detect “a flicker of cardiac motion” on a transvaginal ultrasound, according to Catherine Romanos, a doctor who performs abortions in Ohio and a fellow with the group Physicians for Reproductive Health.

Six weeks’ gestation is just shortly after most pregnant people miss their first period, meaning many people don’t know they are pregnant at this stage.

Some reproductive rights groups argue that the term “heartbeat” bill is a misnomer, since the fetus does not yet have a heart at six weeks’ gestation — the cardiac activity detectable at that time comes from tissue called the fetal pole, as OB-GYN Jen Gunter has written. Planned Parenthood refers to the bills as six-week bans.

Meanwhile, some supporters of the bills argue that they might allow abortion slightly later in pregnancy than six weeks. A “heartbeat” bill in Ohio, signed into law in 2019, does not specifically require a transvaginal ultrasound, Jamieson Gordon, director of communications and marketing at Ohio Right to Life, told Vox that year. Some doctors, she said, might choose to perform an abdominal ultrasound instead, and such a test cannot detect a heartbeat until around eight to 12 weeks’ gestation.

The Ohio law leaves the precise requirements for determining the presence of a heartbeat up to the state Department of Health. But, said Romanos, the law, which has been blocked in court, would likely ban nearly all abortions in the state if allowed to go into effect.

“There will a small minority of people who know their body really well” and immediately recognize they are pregnant who will be able to get an abortion under the new law, Romanos told Vox in 2019. They will also need to be able to travel to a clinic and get together the money for the procedure within the time allowed. The law carves out an exception if a patient’s life is in danger, but not for a pregnancy resulting from rape or incest.

“It’ll be really devastating to people,” Romanos said. “It’s patient abandonment.”

The Texas law includes a provision not seen in previous bans, allowing any private citizen to sue an abortion provider or anyone who “aids and abets” a violation of the ban, according to the Dallas Morning News. Some think this will make it harder for abortion-rights groups to challenge the law, because it is individuals, not the state, who will have the job of enforcing it.

“Planned Parenthood can’t go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued,” Josh Blackman, a constitutional law professor at South Texas College of Law Houston, told the Texas Tribune.

The law also does not require that a person have any connection to the abortion provider in order to sue, which some fear could open up clinics — and even individual patients — up to abuse through rounds of endless lawsuits.

However, reproductive rights groups have pledged to fight the law in any case. Elisabeth Smith, chief counsel for state policy and advocacy at the Center for Reproductive Rights, told the Tribune that the Center was “not going to let this six-week ban go unchallenged.”

The bills have proliferated since 2016. None has gone into effect — for now.

The first bill based on Faith2Action’s model legislation was introduced in Ohio in 2011. It didn’t pass. While similar laws successfully passed in North Dakota and Arkansas in 2013, heartbeat bills were not embraced by all anti-abortion groups. Ohio Right to Life was neutral on the issue until 2018, preferring to back less sweeping restrictions like a 20-week ban.

But after the election of President Trump, who promised to appoint Supreme Court justices to overturn Roe v. Wade, anti-abortion groups began backing more restrictive laws. “Heartbeat” bills in particular began to proliferate at the state level in 2018, with Iowa passing its version in May of that year.

Similar bills later passed in Kentucky, Mississippi, Louisiana, Ohio, Georgia, and elsewhere. None is in effect, with most facing court challenges from reproductive-rights groups.

But a court battle is precisely what some supporters of the bills are hoping for. Some legislators backing the heartbeat bills have said they see them as potential challenges to Roe v. Wade, which, together with the 1992 decision Planned Parenthood v. Casey, prohibits states from banning abortion before a fetus can survive outside the womb (a point known as viability). A six-week ban falls well before that limit.

Sponsors of some such bans have been explicit about their desire to challenge Roe. “The science and technology have significantly advanced since 1973,” said Iowa state Rep. Shannon Lundgren, the floor manager of the Iowa bill, in 2018. “It is time for the Supreme Court to weigh in on the issue of life.”

The Supreme Court has yet to take up a case involving a six-week ban. However, on Monday, the Court announced it will hear Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi law banning most abortions after 15 weeks. That case, the first abortion case to be fully briefed and argued before the Court since Barrett’s confirmation, could provide an opportunity to revisit and potentially do away with the viability standard, allowing states to ban abortion at six weeks or before.

Dobbs v. Jackson is unlikely to be decided this year, and it is likely that the Texas law will remain in legal limbo for now. But some doctors say “heartbeat” bills have already begun affecting patients, even though none has taken effect.

“I think people are already confused,” Romanos said in 2019. “I worry that there are patients that heard about the bans passing and now just aren’t seeking care that they otherwise would seek because they think abortion is illegal already.”