by Thomas M. Messner, J.D.
On Friday a federal district court in Arkansas upheld the Arkansas heartbeat testing requirement. The heartbeat testing requirement provides that abortions in Arkansas shall not be performed before testing whether the unborn child possesses a detectible heartbeat.
The district court also upheld a related disclosure requirement. If a heartbeat is detected then the mother must be informed that her unborn child possesses a heartbeat.
The district court explained that “the Supreme Court has recognized that the disclosure of truthful information about fetal development is relevant to a woman’s decision-making process and is rationally related to the State’s interest in protecting the unborn.”
The Arkansas heartbeat testing and disclosure requirements were enacted in 2013 as part of the Arkansas Human Heartbeat Protection Act.
That law also included a ban on certain abortions. Subject to certain exceptions, the law banned abortions when the unborn child possesses a detectable heartbeat and has reached 12 weeks of gestation.
The district court struck down this part of the Arkansas law. The court cited U.S. Supreme Court precedent regarding viability of the unborn child as the point when the government may prohibit abortion in some cases. This rule is often called the “viability rule.”
Viability is not a precise event but usually occurs, in the current state of medical development, around 24 weeks of pregnancy. The Arkansas heartbeat law banned abortions at 12 weeks when a heartbeat was detected. Therefore, the district court ruled that the law violated Supreme Court precedent.
But the district court did not strike down the entire law. In addition to striking down the 12-week ban, the district court struck down a provision requiring revocation of a medical license of a physician who violated that ban, and a provision requiring a physician to notify a pregnant woman about the 12-week ban.
However, the district court held that “[a]ll remaining provisions of the Act remain in effect.” Therefore, Arkansas may still require testing for a heartbeat before performing abortion and, when a heartbeat is detected, require disclosure to the mother that her unborn child possesses a heartbeat.
This ruling is a victory for advocates seeking to protect unborn children by requiring that mothers considering abortion be informed if their unborn babies possess a heartbeat.
However, the ruling should also place renewed focus on the Supreme Court’s “viability rule.” Subject to dispute, the viability rule is often interpreted as a bright line prohibition on any law that would restrict abortion on demand before 24 weeks of pregnancy.
Such a standard is extreme compared with the abortion standards of many countries. A recent report published by the Charlotte Lozier Institute finds that, of 198 countries, independent states, and semi-autonomous regions with populations exceeding one million, “59 allow abortion without restriction as to reason, otherwise known as elective abortion or abortion on demand.” Of the 59 countries that permit abortion on demand, more than 75% “do not permit elective abortions past 12 weeks gestation.” Further, “the United States is one of only seven countries in the world that permit elective abortion past 20 weeks.”
The Lozier report explains that “[t]he United States is within the top 4% of most-permissive abortion policies in the world (7 out of 198) when analyzing restrictions on elective abortion based on duration of pregnancy.”
Ultimately, clarifying the meaning of the viability rule, or modifying it or abandoning it altogether, will likely require a ruling by the U.S. Supreme Court, which invented the rule in 1973.
