Estimated reading time: 10 minutes.

Several states passed abortion restrictions in the last calendar year, and more are entertaining similar bills right now. Most of these laws, dubbed “heartbeat bills,” seek to restrict abortion after the fetus has a detectable heartbeat. All of these laws are in conflict with the holdings of Roe v. Wade and Planned Parenthood v. Casey, and the goal in passing most of them is to provide a test case to overturn Roe.

The “heartbeat bills” are generating a lot of press, and most people want to know what exactly the laws would do if they were allowed to stand. Unfortunately, there is a lot of misinformation and hyperbole circulating from deceitful or inaccurate sources. Our goal is to help you become informed about the contents of the laws in order to have accurate dialogue. Looking at the text of the laws and related state statutes and case law, we have compiled a reference table for you below:

Facts are as of 5/29/19

Footnotes:

• (+) The goal of the heartbeat bill is to ban abortions after 6 weeks, but the requirement to test for a heartbeat opens the door for abortions potentially as late as 12 weeks because some ultrasound methods don’t detect a heartbeat as early.
• * Missouri has backup bans at 14 weeks, 18 weeks, and 20 weeks in case earlier laws are stricken down.
• ** Case law strongly indicates that women will not be held liable for criminal abortion in Georgia; the same case frowns upon investigating miscarriages. However, it is possible that women could be charged with some type of manslaughter because the law declares unborn humans with heartbeats to be natural persons.
• *** A provision related to parental notification took effect immediately.

Alabama:

• The law bans abortion at any gestational age.
• The law provides exceptions for medical necessity (including ectopic pregnancy) and lethal fetal anomaly, but not for rape or incest.
• Abortion is Class A felony under the law; attempted abortion is a Class C felony
• The law clearly states that women cannot be prosecuted for getting an abortion. “No woman on whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.”
• The law was passed May 2019, and it will become effective in November 2019.

Source:

1. https://legiscan.com/AL/text/HB314/2019 (text of the law)

Georgia:

• The law classifies unborn children as natural persons.
• The law requires a physician to check for a fetal heartbeat before performing an abortion. If a heartbeat is detected, it is illegal to abort the child. This is designed to exert a chilling effect on abortion after six weeks gestational age, though variation in different methods of detecting the heartbeat could allow for abortions a few weeks later than that.
• The law allows exceptions to the ban for medical emergency (including ectopic pregnancy) or lethal fetal anomaly. It also allows exceptions for cases of rape or incest at up to 20 weeks gestational age.
• The law creates a wrongful abortion tort, contains a born-alive provision, provides guidelines on payment of prenatal child support, and extends the wrongful death tort to fetuses with a detectable heartbeat.
• The law does not specifically articulate penalties for abortion practitioners, nor does it specifically state that women are exempt from prosecution for receiving an abortion.
  • The existing penalty for criminal abortion is between 1-10 years in prison.
  • Georgia case law is pretty clear that the criminal abortion statute doesn’t apply to women getting abortions. According to Hillman v. State, the law only envisions a third party performing or administering abortions, and therefore only a third party abortion practitioner can be punished.
  • The same case contains language which frowns on state action that would tend toward investigating miscarriages.
  • However, because the Georgia law classifies unborn children as persons, there is a reasonable concern that this would extend homicide laws to women, even though they can’t be liable under the abortion law.
    • Under state law, murder requires malice, express or implied, as well as intention. Given that situations leading to abortion are often stressful and don’t arise from any enmity against the unborn child, it’s difficult to see how a murder charge would stick.
    • Voluntary manslaughter is an act that would be murder except it instead comes from a passion. You might think a woman could be charged under this law, since murder doesn’t seem to apply. However, voluntary manslaughter (like murder) requires the intentional killing of another human being; that wouldn’t seem to be possible if the defendant denies fetal personhood, because they wouldn’t believe they were killing a person. In a future world in which everyone believes the fetus to be a person, this charge could stick; it seems unlikely in our current world.
    • If not murder or voluntary manslaughter, perhaps the state would charge a woman with involuntary manslaughter? This seems much more likely. There are two types of involuntary manslaughter charges in Georgia:
      • Unintentionally taking a life in an unlawful act. This carries the same penalty as criminal abortion (1-10 years). Prosecutors could conceivably use this as a hook to give women the same penalty as abortion practitioners. However, it’s questionable that abortion is an inherently unlawful act separate from taking the life of the fetal human. A woman could be prosecuted on this charge, but it seems more likely that a successful prosecution would occur under the second type of involuntary manslaughter charge.
      • Unintentionally taking a life in an otherwise lawful act. This is only a misdemeanor offense. If the woman denies fetal personhood, she lacks intention. Because Georgia allows pre-heartbeat abortions and a bunch of exceptions, I argue that abortion is actually a lawful act in the state. My conjecture is that, if women are successfully charged and tried for involvement in abortion, it would be under this misdemeanor charge.

Sources:

1. http://www.legis.ga.gov/Legislation/en-US/display/20192020/HB/481 (text of the law);
2. https://casetext.com/case/hillman-v-state-21 (related case law);
3. https://law.justia.com/codes/georgia/2010/title-16/chapter-12/article-5/16-12-140/,
4. https://law.justia.com/codes/georgia/2010/title-16/chapter-5/article-1/ (related existing statutes);
5. Snopes article that fact checks if a woman would be prosecuted: https://www.snopes.com/fact-check/georgia-abortion-law/

Iowa:

• The law requires a physician to check for a fetal heartbeat before performing an abortion. If a heartbeat is detected, it is illegal to abort the child. This is designed to exert a chilling effect on abortion after six weeks gestational age, though variation in different methods of detecting the heartbeat could allow for abortions a few weeks later than that.
• The law allows exceptions to the ban for rape, incest, medical emergency, and lethal fetal anomaly.
• It is unclear if the law provides any penalty to abortion practitioners who perform an illegal abortion.
• The law specifically “shall not be construed to impose civil or criminal liability on a woman on whom an abortion is performed.” In other words, women can’t be prosecuted for getting an abortion.
• The law was signed in May 2018, but stricken down under the Iowa constitution in Jan. 2019. Because the case was decided under state law rather than federal law, the Iowa law can’t be used to challenge Roe.
• The Iowa law also prohibits the sale of fetal parts, punishing violations as a Class C felony.

Source:

1. https://www.legis.iowa.gov/docs/publications/lge/87/sf359.pdf (text of the law)

Kentucky:

• The law requires a physician to check for a fetal heartbeat before performing an abortion. If a heartbeat is detected, it is illegal to abort the child. This is designed to exert a chilling effect on abortion after six weeks gestational age, though variation in different methods of detecting the heartbeat could allow for abortions a few weeks later than that. There is no legal requirement to test for a heartbeat in medical emergencies.
• The law allows exceptions to the ban for medical emergency (life of the mother, serious harm), but not rape or incest.
• It is a Class D felony to perform an illegal abortion.
• The law specifically states that women will not be held liable, either on criminal or civil charges, for getting an abortion.
• In addition, the law creates a wrongful abortion claim under which women can sue abortion practitioners.
• The law was signed in March 2019, but it received a judicial stay the same week.

Source:

1. https://legiscan.com/KY/text/SB9/id/1940477 (text of the law)

Louisiana:

• The law requires a physician to check for a fetal heartbeat before performing an abortion. If a heartbeat is detected, it is illegal to abort the child. This is designed to exert a chilling effect on abortion after six weeks gestational age, though variation in different methods of detecting the heartbeat could allow for abortions a few weeks later than that.
• The law allows exceptions to the ban for medical emergency (life of the mother, serious harm), but not rape or incest.
• According to a related abortion statute, practitioners who perform illegal abortions will face 1-10 years in prison.
• The law clearly states that women cannot be prosecuted for getting an abortion. “This Section shall not apply to the female who has an abortion.”
• This law is scheduled for a vote today, Wednesday, May 29, 2019. It is expected to pass and be signed into law.

Sources:

1. https://legiscan.com/LA/text/SB184/2019 (text of the bill);
2. https://law.justia.com/codes/louisiana/2017/code-revisedstatutes/title-14/rs-14-87/,
3. https://law.justia.com/codes/louisiana/2015/code-revisedstatutes/title-40/rs-40-1061.29 (related existing statutes)

Mississippi:

• The law requires a physician to check for a fetal heartbeat before performing an abortion. If a heartbeat is detected, it is illegal to abort the child. This is designed to exert a chilling effect on abortion after six weeks gestational age, though variation in different methods of detecting the heartbeat could allow for abortions a few weeks later than that. There is no legal requirement to test for a heartbeat in medical emergencies.
• The law allows exceptions to the ban for medical emergency (life of the mother, serious harm), but not rape or incest.
• A practitioner is subject to loss of license if he doesn’t check for a fetal heartbeat. It is a misdemeanor crime to perform an abortion after a fetal heartbeat is detected.
• The law clearly states that women cannot be prosecuted for getting an abortion. “A pregnant woman on whom an abortion is performed…is not guilty…and is not subject to a penalty”
• The law was signed in March 2019; it received a judicial stay in May 2019.

Sources:

1. https://legiscan.com/MS/text/SB2116/id/1846191 (text of the law);
2. https://law.justia.com/codes/mississippi/2014/title-41/chapter-41/performance-of-abortion-consent/section-41-41-39/ (related existing statute)

Missouri:

• The law prohibits abortion after 8 weeks gestational age; though it uses heartbeat language, an age cutoff is used in place of the heartbeat test. The law also contains successive bans at 14 weeks, 18 weeks, and 20 weeks, utilizing a severability clause to prohibit as many abortions as possible in case courts strike down bans before a certain gestational age.
• The law allows exceptions to the ban for medical emergency (life of the mother, serious harm), but not rape or incest.
• The law considers abortion a Class B felony
• The law clearly states that women cannot be prosecuted for getting an abortion. “A woman on whom an abortion is performed or induced…shall not be prosecuted for a conspiracy to violate the provisions of the subsection.”
• This law is unique in its emphasis on prohibiting abortion as a means of discrimination.
• The law was passed in May 2019. A provision regarding parental notification went into effect immediately, and the rest of the law will be effective in August 2019.

Source:

1. https://legiscan.com/MO/text/HB126/2019 (text of the law)

Ohio:

• The law requires a physician to check for a fetal heartbeat before performing an abortion. If a heartbeat is detected, it is illegal to abort the child. This is designed to exert a chilling effect on abortion after six weeks gestational age, though variation in different methods of detecting the heartbeat could allow for abortions a few weeks later than that. There is no legal requirement to test for a heartbeat in medical emergencies.
• The law allows exceptions to the ban for medical emergency (life of the mother, serious harm), but not rape or incest.
• It is considered a fifth-degree felony if a practitioner doesn’t check for a fetal heartbeat or aborts after one is detected.
• The law clearly states that women cannot be prosecuted for getting an abortion. “A pregnant woman on whom an abortion is performed or induced…is not guilty of violating any of those sections.”
• In addition, the law creates a wrongful abortion claim under which women can sue abortion practitioners.
• The law was passed in April 2019, and it will become effective in July 2019.

Source:

1. https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-SB-23 (text of the law)

Please tweet this article!

• Tweet: Heartbeat Laws: What You Need to Know
• Tweet: Can women be prosecuted for abortions under new heartbeat bills? This cheat sheet gives you the FACTS.

The post “Heartbeat Laws: What You Need to Know” originally appeared at the Equal Rights Institute blog. Subscribe to our email list with the form below and get a FREE gift. Click here to learn more about our pro-life apologetics course, “Equipped for Life: A Fresh Approach to Conversations About Abortion.”

The preceding post is the property of Andrew Kaake (apart from quotations, which are the property of their respective owners, and works of art as credited; images are often freely available to the public,) and should not be reproduced in part or in whole without the expressed consent of the author. All content on this site is the property of Equal Rights Institute unless the post was written by a co-blogger or guest, and the content is made available for individual and personal usage. If you cite from these documents, whether for personal or professional purposes, please give appropriate citation with both the name of the author (Andrew Kaake) and a link to the original URL. If you’d like to repost a post, you may do so, provided you show only the first three paragraphs on your own site and link to the original post for the rest. You must also appropriately cite the post as noted above. This blog is protected by Creative Commons licensing. By viewing any part of this site, you are agreeing to this usage policy.

The post Heartbeat Laws: What You Need to Know appeared first on Equal Rights Institute Blog - Clear Pro-Life Thinking.