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Fetal heartbeat and the abortion fight

A new threshold for illegal termination fuels a never-ending American debate.

Protesters rally outside of the Georgia State Capitol

Protesters rally outside of the Georgia State Capitol following the signing of HB 481, in Atlanta on May 7, 2019.

The battles over abortion — focused on a Georgia bill that many say would effectively ban the procedure, and now an explicit total ban in Alabama — have reached such a pitch that actress and activist Alyssa Milano has urged women to stop having sex “until we get bodily autonomy back.”

While the “sex strike” is a silly idea, the issue is extremely serious; but it sorely needs accurate reporting and fact-based discussion.

The Georgia law, signed by Republican Gov. Brian Kemp last week, bans abortions after “fetal cardiac activity” can be detected — as early as six weeks’ gestation, when many women do not know they are pregnant. It also grants full personhood to unborn children. Critics claim that as a result, women could be charged with homicide for having an abortion (even out of state) after heartbeat detection, or for a miscarriage due to negligence.

The operative word is “could.” Experts disagree on whether other Georgia statutes exempting patients from prosecution for illegal abortion would extend to the new bill, which contains no such language. Georgia appellate attorney Andrew Fleischman believes that women could face prosecution; Staci Fox, president and CEO of Planned Parenthood Southeast, argues they would not, though they could be forced to testify against doctors.

Some coverage has been downright misleading. In the past few days, a Chicago Tribune column and an online CBS News story strongly implied that a pregnant 11-year-old rape victim in Ohio would be denied an abortion under that state’s “heartbeat law” — disclosing only far down in the text that the law is not yet in effect and the victim is not affected, though others could be eventually.

Meanwhile, on Tuesday, the Alabama legislature took abortion restrictions to a new extreme, voting to criminalize all abortion after embryonic implantation with no rape/incest exceptions. Yet the bill’s backers admit that they don’t expect it to ever take effect and that their goal is to force a fight over Roe v. Wade, the 1973 ruling that made abortion access a constitutional right.

There is no doubt the Alabama, Georgia and Ohio measures will be blocked by federal courts. It’s early to tell whether the Supreme Court will agree to hear these cases; but it’s very unlikely to uphold an Alabama-type ban. Restrictions that scale back Roe but don’t overturn it are far more likely to survive. A Roe reversal is possible, but it would shock the nation and change the political landscape in ways we can’t predict.

As a pro-choice feminist, I share concerns about the threat to women’s autonomy. But I also believe it’s essential to talk about this issue without demonizing the two sides as baby-killers or woman-haters. One often-ignored fact is that there is no gender gap on abortion. In some polls, conservative women are the most passionate pro-life constituency, while liberal women are most strongly pro-choice. The heartbeat law was crafted by a female activist; the Alabama measure was signed by a female governor. This is not about men vs. women, but about competing values.

Abortion pits bodily autonomy against the protection of potential (or, to many, actual) human life. More effective early-abortion drugs might create more pro-choice momentum; technology allowing early observation of fetal life shifts it the pro-life way. Interestingly, polls show that compared with the 1990s, many more Americans call themselves pro-life — but the same majority as before favors allowing most first-trimester abortions.

We’ll live with the ambivalence for years. But unenforceable draconian laws intended to provoke “the enemy” and mobilize supporters are the worst way forward.

Cathy Young is a contributing editor to Reason magazine.

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