Guest Post: North Dakota's Heart Beat Bill Is Constitutional

I apologize up front for the length of this piece. I have had many requests to lay out the constitutional framework for HB1456 also known as the Heartbeat Bill, but, as I said in my earlier piece on life there is a great deal of confusion and misinformation about the Supreme Court’s abortion decisions. Pro-abortion groups have done a very good job of “education” to the point that very few of us understand the legal framework involved.

The Heartbeat Bill is very simple. Everyone understands what a beating heart means. It means life. The Heartbeat Bill prohibits an abortion when the baby’s heartbeat is present, except to protect the life or health of the mother. A heartbeat is accepted by everyone as a sign of life and a baby’s heartbeat gives compelling testimony from the womb.

Constitutionality

The Heartbeat Bill does not state that life begins at the detection of a heartbeat or at any specific time during pregnancy. The Heartbeat Bill is not intended to overthrow Roe v Wade as many opponents claim. The Heartbeat Bill is drafted to fit within the legal framework established by the US Supreme Court. However, it recognizes the 40 years of advancements in medicine, science and technology. Information that the Supreme Court acknowledged it was lacking in 1973 when Roe v Wade was decided. The Court’s opinion was based on human knowledge as it had developed up to 1973. This Heartbeat Bill merely assumes that our knowledge of the development in the womb did not stop advancing in 1973.

First, we should dispel the notion that this Bill should be defeated because of the cost of litigation. Whether this Bill is challenged in court is entirely up to the abortion industry. Given the lucrative nature of abortion it is likely that any statute that reduces the number of customers will be challenged by the industry. But, I simply cannot accept the idea that we will not fight for the truth just because the opposition has deep pockets. Not when it comes to life.

Roe v Wade

Most understand that this US Supreme Court opinion found a constitutionally protected right to privacy that includes the ability for women to abort her baby. But, there is much more to this opinion than that. The Court also acknowledged two other legitimate rights or duties. One is the right of the state to protect the life and health of the mother and the other is the duty of the state to protect the life, or potential life, of the unborn baby. The Court ruled that a state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

Despite what you may have heard, the Court clearly stated that the right to privacy is not absolute. In fact, the right to privacy must be balanced against the two important state interests. The Court said “it is reasonable and appropriate for a State to decide that at some point in time another interest, that of the health of the mother or that of potential human life becomes significantly involved.”

The woman’s right to privacy was a key finding in Roe, but we have ignored the interest of the state, especially regarding the unborn. What has been lost for the past 40 years is the question – At what point does the state’s legitimate and compelling interest in protecting the life of the child become stronger than the women’s right to privacy?

Viability

The Roe opinion is 30+ pages long and the Court only gave a couple paragraphs to the issue of viability. When considering the question of when life begins the Court stated “… the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

The Court noted that the beliefs as to when life begins “…have tended to focus either upon conception, upon live birth, or at the interim point at which a fetus becomes ‘viable’”.

In 1973 the Court determined that the point during a pregnancy when the state’s important and legitimate interest in potential life becomes compelling was viability. A lot has changed since 1973 and with advancements in technology we now see the development of the baby and hear the heartbeat.

Viability as the compelling point has not been accepted by pro-abortion groups who have worked in the years since Roe to extend the practice of abortion past viability to birth. With the Heartbeat Bill we acknowledge the Court’s belief that man’s knowledge and understanding of human development continues to advance.

Potential Life

The Court’s use of the term potential life is key. The Court was very clear throughout the Roe opinion that a state has an important and legitimate interest – in fact a duty – to protect potential life. The Court stated, “Logically, of course, a legitimate state interest in this area need not stand or fall on the acceptance or belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as potential life is involved, the State may assert interests beyond the protection of the pregnant women alone.” (emphasis US Supreme Court)

When discussing the legitimate interests of the state the Court said, “At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of factors that govern the abortion decision.”

Planned Parenthood v. Casey

The Supreme Court narrowly upheld certain aspects of the Roe decision in the 1992 Casey decision. But, the Court also eliminated the trimester standard from Roe showing that Roe may be modified as science and medicine advance showing that Roe can and will be changed as new understanding develops.

The Court obviously struggled with the question of viability and when discussing the legitimate state interest in protecting potential life the Court said “The weight to be given this state interest, not the strength of the women’s interest, was the difficult question faced in Roe.” Despite that statement the Court majority did not specifically review viability in light of scientific advancements as of 1992, but instead relied on the legal precedent of the Roe opinion.

When discussing Roe the Casey Court said “Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the women’s liberty.”

In other words, the Court acknowledged that the strength of a state’s interest in protecting potential life is the key factor in the abortion debate. But the viability standard developed in 1973 has not been reviewed despite 40 years of scientific knowledge.

Today

Under Roe and subsequent decisions there is no question that North Dakota has a legitimate interest, even a duty, to protect potential life. The key question today is how much weight do we give to that state duty? Our understanding of potential life today is much greater than it was in 1973, the impact of 40 years of advancements in medicine and technology cannot be ignored. The images and the heartbeat from the womb provide strong and overwhelming evidence of, at the very least, potential life.