It has been two years since conservative lawmakers began widely employing “fetal heartbeat” rhetoric to pass abortion
bans as early as six weeks into a pregnancy.
Despite the medical community speaking out against the inaccurate language and dozens of lawsuits preventing those laws from taking effect, those bills haven't stopped. The latest comes from Texas
, where Gov. Greg Abbott
(R) signed a bill Wednesday effectively prohibiting abortions as soon as a doctor detects cardiac activity in an embryo, which typically occurs around six weeks into pregnancy.
Doctors, however, argue that not only is that cutoff completely arbitrary, but it is also based on the false premise that a “fetal heartbeat” — a phrase frequently included in the bills’ titles — exists at that stage of pregnancy.
“To say that a six-week pregnancy has a fetal anything is incorrect,” Dr. Colleen McNicholas, an obstetrician-gynecologist who performs abortions, explained, noting that the term “fetal heartbeat” isn’t even applicable until about 10 weeks into a pregnancy, when an embryo has developed sufficiently to be called a fetus.
“At that point, it really is just these two tubes with a couple of layers of cardiac or heart cells that can vibrate or cause some sort of movement that we use colloquially to talk about a ‘fetal heartbeat,’” she said.
McNicholas is based in St. Louis
, where an appeals court is currently deliberating over one of the 2019 laws.
Governors in South Carolina
, and Idaho
have all signed bills similar to Texas's this year, but they, too, are being held up by legal challenges.
Dr. Carley Zeal, another OB-GYN in St. Louis, expressed similar dissatisfaction with the bills' use of the term "fetal heartbeat."
At six weeks, an embryo "has no other functioning organs, no ability to live on its own, and it's actually so small that when we review pathology from an abortion or a miscarriage at six weeks gestation, there's not an identifiable fetus to review," she explained. "It's just a gestational sac and some cells, so it's very small and definitely not able to live outside of the womb."
An embryo is less than a centimeter long at that point, she says, which is smaller than a penny or the width of most people
's pinky fingers.
However, the way the lawmakers behind these abortion bans talk about pregnancy at that point gives a very different impression.
“If a heartbeat is detected, that child is a living human being, and you can no longer murder this child in its mother's womb,” Kentucky
state Sen. Matt Castlen (R) said at a press conference in 2019 when introducing his state's "fetal heartbeat" bill.
It is incorrect to say that a fetal anything exists in a six-week pregnancy.
obstetrician-gynecologist Dr. Colleen McNicholas
“What we’re doing is... recognizing that the child with a beating heart inside of mom, that has a heartbeat, that they’re preparing a nursery for, that is wiggling around inside mom, is actually a person,” Georgia
state Rep. Ed Setzler (R), the architect of his state’s abortion ban, also stated that year.
tells us that the heartbeat truly marks the beginning and end of life,” he continued.
According to Zeal, who testified against the Missouri bill as a member of the group Physicians for Reproductive Health
, the focus on the heartbeat as a cutoff date is completely arbitrary.
“There’s a lot of talk from the other side about a heartbeat being the point at which a life begins, which is really based on their ideologies,” she said, adding, “What we’re trying to focus on as providers is to take it away from their black-and-white ideology and focus back on what is safest and most effective care for our patients.”
McNicholas agreed, saying, “There is no single organ that we say defines life from a medical standpoint.”
To her, focusing on the heart is a way of capitalizing on one of society's most deeply ingrained word associations. The heart is merely a muscle that pumps blood through someone's circulatory system, but idioms like "following your heart" and "a broken heart" have given anti-abortion activists something that, figuratively speaking, tugs at people's heartstrings.
“I think it’s a capitalization on our society’s longstanding obsession and infatuation with the symbolism of the heart,” she says, “because we use the heart visually in so many different ways to mean so many different things, and I think this particular approach really capitalizes on our obsession with the heart being a symbol of something.”
Aside from ignoring embryology facts, lawmakers are ignoring a huge practical issue: Many patients do not know they are pregnant in the first six to eight weeks of pregnancy, according to both doctors. It is common for patients who have irregular periods, thyroid issues, financial insecurities that limit their medical access, and other atypical circumstances to miss or not have any early signs of pregnancy.
However, lawmakers who support those bills dismiss those common circumstances. Missouri state Rep. Barry Hovis (R) argued in 2019 that under his state's bill, which estimates that a fetal heartbeat can be detected at eight weeks rather than six, patients would still have plenty of time to seek an abortion.
“I've never really studied it, but I've heard of the morning-after pill, where if someone feels they've been sexually assaulted, they could go do that,” he said at the bill's final hearing, “and it gives them ample time in that eight weeks to make those exclusions.”
We shouldn't give legislators a pass to be stupid, said Zeal.
“Make no mistake, these bans are designed to ban almost all abortion,” she stressed. “Legislators writing these bans understand that this would make almost all abortions that we do illegal and completely inaccessible to patients, and that’s why they’re trying to get them through. It’s not based at all on a woman’s or a fetus’ health.”
Although abortion is still legal in all 50 states, a serious threat looms. On Monday, the Supreme Court
announced that it would hear a case addressing “whether all pre-viability prohibitions on elective abortions are unconstitutional,” a question that not only addresses six-week bans, but also outright bans enacted by governors in Alabama and Arkansas.
This is the first time the court has agreed to consider an abortion ban since deciding Roe v. Wade in 1973, which has protected access to the procedure for 48 years. If the court, which has been reshaped into a firmly conservative body
by former President Donald Trump
, rules in favor of such bans, the protections established in Roe v. Wade would be essentially thrown out.
This story was first published in 2019 in an earlier version.