The Texas Heartbeat Law and the Pro-Life Movement after Roe

American abortion discourse was already burning white-hot, given the imminent arrival of Dobbs v. Jackson, a major Supreme Court case that will be decided next summer. When Texas passed a “heartbeat bill” banning abortion beyond six weeks’ gestation, and the courts refused to grant a temporary injunction, that roaring blaze was doused with gasoline. So much so, in fact, that it is difficult to see clearly right now what the effect of the law is going to be. Tempers are just that high.

Overall, I think the Texas law is a good thing. But let me start with some critiques that have been at the source of some mixed feelings.

The Bad

Because Texas didn’t designate enforcement of their heartbeat bill to the criminal law, as usual, but instead to citizens who could sue violators for $10,000 in damages (with no risk of paying back legal fees), the courts weren’t able to dismiss the law in advance, as they have done with almost every other bill banning abortion before viability.

From a strategic perspective, this has serious downsides for the pro-life movement. Our willingness to play legal games to get around the rulings of federal courts not only feeds the false narrative that pro-lifers don’t have public opinion on our side, but that we are willing to engage in desperate and extremist tactics—tactics that may well put other federal civil rights at risk—in order to get what they want.

And our opponents decided to play the legal game right along with us. In what almost certainly was part of an organized plan to produce a legal challenge pro-lifers didn’t want, an abortion doctor wrote an op-ed in the Washington Post explaining why and how he had violated the new law. As you might imagine, a lawsuit soon followed—but it didn’t come from a pro-lifer in Texas.

It came from a pro-choicer in Arkansas.

Indeed, it came from a disbarred attorney named Oscar Stilley, who wrote in his legal complaint that he “is kind and patient and helpful toward bastards, but ideologically opposed to forcing any woman to produce another bastard against her own free will.”

To say this is a “hot legal mess,” as New York magazine did, doesn’t begin the capture the silliness of the political and legal machinations going on here. But one thing that is not silly—but rather evil—was the response of the national Democratic party to the Texas bill.

Led by Leader Pelosi and President Biden, both of whom identify as members of a Church which stands clearly and firmly on the side of prenatal justice, the U.S. House of Representatives passed the most extreme pro-abortion—not simply pro-choice—bill in the history of the United States. If passed by the Senate, the bill would override every state law limiting abortion, including parental consent laws for minors, thus legalizing abortion for any reason until birth.

It was passed on a near party-line vote.

The bill was cynically named the “Women’s Health Protection Act,” despite the fact that the overwhelmingly number of abortions procured in the United States have nothing to do with women’s health. Indeed, this bill would abandon the thousands and thousands of women who are coerced to undergo abortion they don’t want to have each year, including under implicit or explicit threat of suffering intimate partner violence if they do not comply. It also ignores the fact that women are more likely than men to support the very kinds of restrictions that this law would wipe out.

But as a former member of the board of Democrats for Life, I know better than most how desperately we need to be pushing this party in a very different direction. We may get a positive result in Dobbs this coming summer, but we will not win hearts and minds (to say nothing of states like New York, New Jersey, and California) if we do not find a way to move those who identify as liberal or progressive in a very different direction on this issue.

The Texas law, it must be said, has pushed the so-called Overton window in a different direction. According to Gallup, only 13 percent of Americans support the law just passed by the House. Nevertheless, that law boasted an astonishing 214 Democrats as co-sponsors. The Texas bill has provoked a backlash that has now made this kind of extremism a dug-in position for the national Democratic party.

So, just as we are about to have a national conversation about the Supreme Court’s consideration of a challenge to Mississippi’s abortion ban at fifteen weeks—a wildly popular threshold supported by over 70 percent of the population—our opponents are smartly drawing attention to Texas’s unpopular threshold (six weeks), which is supported by only four in ten Americans. And they are using that unpopularity as leverage for pushing the Democratic party to an even more extreme place.

The Good

On the other hand, the Texas bill is clearly at the service of justice for a voiceless and hopelessly vulnerable population deeply in need of this kind of protection. And unlike other heartbeat bills passed around the country, the overwhelming majority of which have been struck down or blocked by the courts, this law has thus far stayed in effect. For the most part, abortion clinics and abortion doctors have followed the law, dramatically lowering the abortion rate in Texas and saving the lives about 150 vulnerable children per day.

Think about it: two decades from now, thousands of people from Texas will be walking around anticipating their 21st birthday who will owe their lives to this law. Their mothers—who data suggests will almost never regret being denied an abortion after the passage of time—will also have been saved in a very real sense as well. On these measures alone, the Texas heartbeat bill is an astonishing victory.

But there’s more good stuff. Much more, in fact.

The Reality of Prenatal Biology

Our culture’s debate over abortion is impoverished by the fact that—both through sheer ignorance and willful disinformation—most people simply don’t know about the biological reality of the prenatal human child.

Have you heard the phrase “cardiac pole vibration” before? It is not in common biological usage, but rather comes right out of the debate over heartbeat bills over the last few years. Actor Allyssa Milano, who has somehow become a significant public voice on these matters, has implored the media not to use the term “heartbeat,” but rather another similarly awkward phrase: “fetal pole cardiac activity.”

One might just dismiss her as someone who doesn’t know anything about prenatal biology (and, to be fair, that is the case), but she got the phrase from an OB-GYN named Jennifer Gunter. Gunter’s description was picked up across the country by media and public figures who had an interest in obfuscating the biological reality of the prenatal child. She wasn’t alone, either. Dr. Jennifer Kerns, an OB-GYN at UC San Francisco and director of research in obstetrics and gynecology at Zuckerberg San Francisco General Hospital, said in a Wired interview that at that stage, the child does not have a heart, only “a group of cells with electrical activity.”

These and other authorities in medicine presented to the public by abortion-friendly media seemed to offer a definitive refutation of a manipulative term like “heartbeat.” But as a pro-life bioethicist, I know quite well just how deeply politics—especially abortion politics—has infected even the most basic discussions of medicine and biology. And it was very clear to me how this false biological vision of the prenatal child seemed to win the public narrative. Even the initial response to the Texas heartbeat bill from the media repeated these false or misleading claims.

But the pro-life movement was ready to respond with the biological facts. The primordial heart is a “group of cells” in the same sense that you or I are “groups of cells.” Open any embryology textbook and it will tell you that, at six weeks’ gestation, the human fetal heart has four chambers and is pumping blood unidirectionally.

The organization Secular Pro-Life, in particular, has been all over this biology. This Twitter thread is worth showing to folks who have been duped by misinformation. This image from the tenth edition of the embryology textbook The Developing Human is particularly revealing:

Embryos have hearts & heartbeats. Here’s a diagram of the embryonic heart 35 days postfertilization. It has 4 chambers & uses muscle contractions to unidirectionally pump blood thru the embryo’s body exchanging O2 & CO2. Source: “The Developing Human” by Moore et al. 10th Edition. pic.twitter.com/X70xXgWAkg

— Secular Pro-Life (@secularprolife) September 3, 2021

If it wasn’t clear that abortion politics has been driving the rhetoric in these debates, the very same OB-GYNs will tell pregnant woman who want their child that at six weeks that their baby’s heartbeat is so-and-so many beats per minute and make sure they can in fact listen to that heartbeat. As many who have been close to a pregnancy at this stage know, the heartbeat is an incredibly important marker for the health of the prenatal child. Indeed, when a parent hears the healthy heartbeat of their child for the first time, it is almost always an incredibly emotional moment.

The rhetorical moves employed in the debate over the heartbeat bills are classic examples of our throwaway culture. Certain human beings are reduced to mere things, which can then be discarded as so much trash. An important part of the dehumanization that takes place is the use of specific words or phrases for the unwanted, inconvenient human beings. This “thingifies” them, thus making them easier to discard.

Significantly, the Texas heartbeat bill resists throwaway culture by focusing our attention on the biological reality of the prenatal child—making her that much less easy to toss aside. The brute facts of her biology, of her body, remain the same, regardless of the language used by powerful people who wish to make her easier to discard.

Thank God for the Texas law, as it protects these prenatal bodies from violence.

Protecting Disabled Populations

Soon after the Texas law was passed, a response from Richard Hanania started making the rounds online. A former scholar at Columbia University, and now president of the Center for the Study of Partisanship and Ideology, Hanania tweeted out the following statement:

You can’t screen for Down syndrome before about 10 weeks, and something like 80% of Down syndrome fetuses are aborted. If red states ban abortion, we could see a world where they have five times as many children with Down syndrome, and similar numbers for other disabilities. Could be outliers in the whole developed world. There are already negative stereotypes of Americans in these states, one can imagine it getting much more extreme. What if they also ban genetic engineering and embryo selection, while other places go ahead?

In a response essay printed in the National Catholic Register, I showed how throwaway culture is functioning here as well. Euphemisms like “women’s health” and “reproductive freedom” obscure what abortion does to babies with “fetal abnormalities.”

The very structures of standard prenatal care reinforce a throwaway culture based upon abortion. At a scheduled event charmingly referred to as the “genetic consult,” for example, the clinical assumption is that one would want to know about the likelihood of one’s child having genetic disabilities so that he or she can be violently discarded via abortion when and if one decides that they are no longer wanted. People with Down syndrome, of course, have picked up on what the culture thinks of them—despite the fact that they lead happier lives than we do.

A few years ago, I was confronted with this reality in one of the most direct and moving ways possible.

During a panel discussion at St. Catherine’s parish in Riverside, Connecticut on the aftermath of the 2016 election, I had made it clear how important it was to find more and better ways to protect prenatal children. After the panel, an older man and his middle-aged son came over to say hello. With tears in his eyes, the older man said how much it meant to him to have someone like me stand up for life and particularly the life of his only son, who very clearly had Down syndrome.

As his father gushed about his son’s accomplishments, the younger man grabbed and hugged me as hard as I’ve been hugged in my entire life. That hug demonstrated affection and gratitude, but it was also clear that it came from fear and the desire to feel safe.

Who could blame him for feeling this way? Given the realities Hanania pointed out in his tweet, along with the bill just passed by the House, human beings with these kinds of disabilities are absolutely right to perceive that much of the population wants to make it legal to kill people like them until right before they are born.

This feeling was particularly strong for a twenty-six-year-old British woman with Down syndrome named Heidi Crowter. Indeed, she took the UK’s Department of Health and Social Care to court, arguing that a provision which makes it legal to kill people like her up until birth is an obvious example of wrongful discrimination on the basis of disability. Especially when it is not legal in the UK to kill “normal” prenatal children that late into pregnancy. Remarkably, a UK court just ruled against her—preferring to preserve the right to discard unwanted children rather than protect the rights of the disabled.

The new Texas abortion law, by focusing on those who share a common human nature as the basis of fundamental human equality, is a powerful and necessary source of protection for the disabled.

Offering Real Alternatives to Women

Pregnancy, it should go without saying, it is a uniquely intimate kind of relationship. (One in which cells are exchanged and even stay in each other’s bodies for many years!) Frankly, I get profoundly annoyed when discussion of abortion—as it often does—leaves out either the mother or her child.

Happily, pro-lifers struggling for prenatal justice in Texas are not making the woman invisible.

The state’s Catholic Conference, for instance, “knew they had to be prepared to support women in unexpected pregnancies” after the passage of the heartbeat bill. In addition to enacting the Catholic “Walking with Moms in Need” plan, they “aggressively” supported expanding Texas Medicaid benefits for women who have just given birth. The happy result of this pro-life lobbying effort was bipartisan passage of a bill which expanded these benefits for new mothers from two months to six months after birth.

Texas, which has more than 200 pregnancy help centers across the state designed to help pregnant women and new mothers in difficult circumstances, also passed an “Alternatives to Abortion” bill years before banning abortion at six weeks. Among other things, the program makes millions of dollars available for vulnerable women who need things like “job training and placement, financial independence and budget instruction, life skills, adoption counseling, stress management, child development classes, housing, car seats, diapers, clothing and strollers.”

In Texas, vulnerable mothers are anything but invisible. The pro-life movement there stands ready to walk with them in dramatic and moving ways.

A Post-Roe–Casey Blueprint?

Texas’s refusal to choose between the mother and her prenatal child constitutes a blueprint for the pro-life movement. If Roe and Casey fall, many more vulnerable women across the country will be without the access to abortion our throwaway culture has diabolically forced them to rely on. Pro-lifers must follow Texas’s lead and be at the ready to assist these women. We must make good on our claim that their legal and social equality does not require redistributing oppression to another vulnerable population.

Happily, there is reason to be hopeful about this kind of development. Pro-Life Congressmen Jeff Fortenberry, a Republican representing Nebraska, recently introduced his “Care for Her Act,” which would do the following:

• Make the prenatal child eligible for the child tax credit, which would put $3,600 into the mother’s pocket.
• Establish federal–state partnerships that would catalog and make available all the resources to which a mother is entitled in her state.
• Fund federal grants for the advancement of housing, job training, and education for mothers.
• Provide states with financial incentives to improve maternal and child health outcomes.

Beyond that, the Susan B. Anthony List has been mobilizing for well over a year to be ready to support women in the event that Roe–Casey is struck down. Paid family leave is popular with Republicans and folks like Senator Marco Rubio are trying to find common ground to work with Democrats in passing it in some form. Republican Senators as diverse in their views as Mitt Romney and Tom Cotton have even moved to substantially increase the national minimum wage.

It should be emphasized that none of these initiatives requires abortion to be restricted in order to pass. Both tomorrow, and in a world several months from now in which Roe–Casey is no more, abortion will almost certainly remain legal in states that have the most abortions. If pro-lifers are in the business of saving the lives of babies and giving women alternatives, we don’t need to wait until next summer to move in this direction. We should be moving with great energy to support woman and save babies by reducing the demand for abortion right now.

But just as we must refuse to choose between women and their prenatal children, we must also reject the false choice between reducing abortion demand and reducing abortion supply. And here Texas’s approach also gives other pro-lifers a powerful template to follow.

We Cannot Rest

The struggle for prenatal justice—like that for racial justice and justice for other vulnerable populations—is an absolute requirement for a decent society. We cannot rest in a world that allows children to be violently killed because of their disability. Or because they are coming at an inconvenient time. Or because their mothers are feeling pressure from their intimate partners, employers, or parents to discard the child.

Those of us who live in states in which abortion is likely to remain legal even with a positive decision in Dobbs must gird ourselves for a new and even more difficult struggle for prenatal justice. Indeed, as difficult as it is to imagine, we are likely to face an even stronger backlash than what we are currently seeing in response to Texas’s heartbeat bill.

But we must hold just as firm to our goal here as the man with Down syndrome held onto me back in 2016. His profound fear, his feeling like an outcast, and his sense that the culture thought it would have been better if he were killed before birth should make it clear how high the stakes are in our struggle for prenatal justice.

Even with a Supreme Court victory, this struggle will test us to the limits of our courage and resolve.