Anti-abortion legislation is on the rise across the U.S., although much of it is already suspected of being unconstitutional. Various states in the US are pushing through legislation that will have a restricting effect on women’s access to abortion, and a flurry of lawsuits are following in their wake.
Many of the laws relate to ultrasound tests, as in Wisconsin. The aim is either to show the woman the level of development of the fetus at the time she requests an abortion, or attempt to have the woman hear the fetal heartbeat.
However, fetal heartbeat detection is a tricky issue. The simple biological fact is that embryonic cells, destined to be heart muscles, develop the twitching movement associated with a heartbeat almost immediately when they are formed. A single cell in a petri dish will “beat.” If several cells are placed together, they will start beating in time with one another, where before they all beat at their own independent rates. The issue is that when it comes to detecting a fetal heartbeat, doctors are dependent on the performance of the ultrasound device.
In theory, it is possible hear a single cell beating if the device was sensitive enough. Does this constitute a heart? There is also the issue of how invasive the device is; some devices already have to be placed deep within the vagina in order to operate. This is a procedure that has been as been described as “rape like” when women are forced by circumstances beyond their control to undergo it; often it is legislation that creates those circumstances. Given that any detection devices will always work better when they are closer to the fetus, how invasive a process is acceptable?
A fetal heartbeat is currently detectable after as little as six weeks, and North Dakota has enacted legislation to make this the abortion limit: however the United States Supreme Court has resisted undue burden on women whose pregnancies are before the point of fetal viability. This case may also force a ruling on the invasiveness of detection techniques by the Supreme Court, as the law already challenges precedent.
A variation on this has been passed in Arkansas, the “Human Heartbeat Protection Act,” which seeks to ban abortions at twelve weeks. However, it has already been put on hold by a federal judge who expects the law is unconstitutional.
This tactic has also been used in Ohio, which ironically just had a disastrous execution where the prisoner took twenty minutes to die whilst gasping for breath, which was exactly as predicted by medical experts. Ohio is obviously comfortable with executions despite the fact that the anti-abortion law there is on the rise.
The age of fetal viability is generally considered to be 22-24 weeks, although babies born prematurely at these ages have a very high possibility of death, brain damage, and life long health issues. Only a few survive to become healthy adults, although it is possible. It is currently believed that the human central nervous systems starts to function as it would throughout life at around 21 weeks, although this varies. Some promote this as a point when “life” as an independent entity truly begins. One suggested standard is that “when a pregnancy, with reasonable medical intervention, represents an independently viable human life, abortion should not take place.” All these standards suggest a limit on abortion at around 20 weeks, which would still be before the point of fetal viability.
Another tactic in the campaign against abortion is to set “safety standards” for clinics that are much higher than before, and as a consequence gives the state the legal authority to shut them down if they do not meet them. Recently, in Alabama such legislation was put in place, and immediately halted by another federal judge until at least March.
Kansas has also signed into law that life begins at fertilization, which cannot be scientifically verified. When the sperm enters the egg the process of development begins, however, no one has yet shown any evidence of what is happening within the egg until cells begin to multiply several days later. Although it is arguable that once the fertilised egg does start to divide it meets the commonly established definition of life, that would normally include metabolism, growth, reproduction, and functional activity; although it shows this on a cell by cell basis, not as an entire entity at the beginning.
Similar safety standard legislation in North Carolina may reduce the number of abortion clinics from 16 to 1. In Texas it may reduce the number of clinics from 42 to 5.
With anti-abortion legislation on the rise, which appears to be driven forward by religious sentiment, the secular U.S. Constitution will be looked to again and again by opponents.
Editorial By Andrew Willig