In Defense of Texas’s Heartbeat Bill

By John Quinn

On Wednesday, September 1st, the State of Texas made history as the first in the union to implement a fetal heartbeat bill. This legislation prohibits abortion violence after a fetal heartbeat can be detected. 

As is to be expected whenever whole life laws are advancing, Planned Parenthood, the abortion lobby, and their sympathizers in the media are waging an all-out campaign against the Texas heartbeat law. What follows is our Whole Life response, pushing back against two items of misinformation and providing four important counterarguments.  

Three items of misinformation: 

  1. “The Texas law bans abortion after 6 weeks.”

This is not accurate! The law bans abortion after a fetal heartbeat can be detected, which is usually between 6 and 8 weeks gestation. This is an important distinction–the law does not ban abortion after 6 weeks gestation!

2. “The Texas law effectively bans almost all abortions in the state.” 

This is highly unlikely. The State of Texas keeps detailed statistics about the abortions that happen within its borders. Looking at 2020, of the 53,000 abortions performed in Texas in 2020, 45,000 occurred before 8 weeks pregnancy. Since fetal heartbeat would be detectable after 8 weeks, the 8,000 abortions that occurred after that point would almost certainly have been illegal (presuming the life of the mother was not at risk, an important exemption carved out in the Texas heartbeat law). Because Texas doesn’t have data on how many abortions happen in Texas between 6 and 8 weeks gestation, we cannot say for sure how many of the other 45,000 abortions would still be legal. However, we can say that it is highly unlikely that “the Texas law effectively bans almost all abortions in the state.” Abortion early in pregnancy is the most common in Texas, and is the least restricted by this law.

  1. “The Texas law creates vigilantes.” 

It is true that the Texas heartbeat law does not have normally expected enforcement mechanisms. Unlike fetal heartbeat laws that have passed in other states, the law is not enforced by state authorities. Rather, private citizens can bring suits against doctors and others who aid in abortions after the detection of a fetal heartbeat. Crucially, a woman who receives an abortion cannot be sued under this law. In theory under this law an abortion provider could be sued by another Texan whom the provider has never before met, or who only has indirect knowledge of the abortion. However, this is hardly vigilantism! The law empowers citizens to sue, that is, to file paperwork in a court. It does not empower citizens to make arrests, directly confront people who may have been involved in an abortion, and it especially does not empower citizens to do violence to anyone. Furthermore, as Justice Sotomayor noted in her opinion regarding this law last week, most abortion clinics in Texas have announced they will be complying with the law (not performing abortions after a fetal heartbeat can be detected). If they follow through on that promise, there will be very few private suits seeking to enforce the law. The enforcement mechanism here is unconventional and privatized, but it is not vigilantism. 

Three important counterarguments: 

  1. The whole life movement is not married to this enforcement mechanism, but we are adamant about protecting human beings from the violence of abortion.

Many in the whole life and pro-life movements acknowledge that this private enforcement mechanism is not our ideal. We would prefer more conventional enforcement mechanisms, as demonstrated by the first 13 heartbeat laws passed in other states. However, all of those laws have been stayed by the courts before they could be implemented. This prevented the laws from achieving their goal of protecting preborn children and their mothers from the violence of abortion! It is only in response to that legal blockade erected by the pro-choice movement and the untenable Roe v. Wade precedent that defenders of the preborn resorted to these extraordinary measures. When those legal obstacles are cleared, we look forward to returning to conventional enforcement mechanisms. In the meantime, we will use these unconventional, safe, and effective means to reduce violence in our society.

  1. The whole life movement has not put itself in an untenable political position. Certainly, there has been mobilization against the Texas law. However, it will not be able to stop us from achieving our goals. Here are a couple of examples: 
    1. The Texas law has prompted Speaker Pelosi to schedule a vote on codifying Roe v. Wade into law. While this may pass the House, it has nowhere near the 60 votes it would need in the Senate (to clear the filibuster). Senators Joe Manchin (D-WV) and Bob Casey (D-PA) have not co-sponsored this legislation, and we thank them for that!  
    2. The Justice Department announced that it would be enforcing a federal law signed into effect in the 90’s. This law prevents pro-life advocates from blocking entraces to abortion clinics and prohibits violence against any adult involved in an abortion. (It certainly does not protect the preborn child from violence)! The Justice Department can happily keep enforcing this law, because there have been no reports that it has been broken in Texas! Pro-life citizens will easily be able to follow that law and bring private suits against abortions after a heartbeat has been detected. With this announcement, the Justice Department is merely posturing against the Texas law. 
    3. Finally, Politico’s Jeff Greenfield pushes back against the narrative that  pro-choice politicians will ride backlash against laws like Texas’ to overwhelming political victories.
  2. The whole life movement is combatting polarization by supporting Texas’s heartbeat law. 

Finally, many have experienced the controversy around this law as polarizing–with the opposing sides escalating the conflict and increasingly aggravating each other. While the whole life movement does a lot of good work to decrease polarization, the human rights of the preborn are too important for us to not support this law because some people vehemently disagree with it. Commentators have traced our country’s political polarization to our abortion debates. This makes intuitive sense to the pro-life movement, wherein many people have become single-issue voters against the abortion violence that has cost millions of lives in our nation. Until preborn lives are protected, this level of polarization will likely continue. Abortion violence is the true polarizer, not pro-life legal protections!

Please also see DFLA’s full press release, issuing powerful challenges to the relevant actors, including Planned Parenthood of Texas, and Executive Director Kristen Day’s piece in America magazine.