All across America, states are voting on draconian abortion law reforms that threaten the right to safe, legal terminations.

These laws, known as the Heartbeat Bill, promote an abortion ban from as early as six weeks – when most women don’t even know that they are pregnant. Some 14 states have passed new laws, some protecting abortion rights while others restricting them and a further 12 states are considering new laws. The number of states that have restricted abortion rights is six, including a newly passed Heartbeat Bill in Louisiana. That state’s Democratic governor has pledged that he will cross party lines to vote to approve the bill when it crosses his desk this week. 

“As I prepare to sign this bill, I call on the overwhelming bipartisan majority of legislators who voted for it to join me in continuing to build a better Louisiana that cares for the least among us and provides more opportunity for everyone,” Governor John Edwards said in a statement. 

Aside from Louisiana, the states that have received the most news coverage are Alabama and Georgia, which both passed variations on the Heartbeat Bill this year. Alabama’s is the most restrictive, rendering abortion illegal in all cases including rape and incest. Doctors who perform abortions could face legal punishment greater than those found guilty of rape. In Georgia, the bill focuses on stopping terminations after the six week fetal heartbeat test, and the state has faced heavy criticism from the Hollywood film industry as it is the location of several film productions. Both these states’ governors have signed the bill into law.

From there, the only way to prevent the laws from passing into reality is through legal action. The first recourse is through district courts but, from there, legal contests to the Heartbeat Bill could be appealed all the way up to the Supreme Court. And what kind of majority is there in the Supreme Court now that Justice Brett Kavanaugh has been appointed? A conservative one. 

So how does the Heartbeat Bill work, exactly? And how can it be stopped? 

What is the Heartbeat Bill?

The Heartbeat Bill is legislation that renders terminations after six weeks of gestation illegal. This is because at around six weeks a foetus’ heartbeat or, more specifically, cardiac activity can be detected.

The bill is not new, but it has received renewed interest since Donald Trump became president. It was first drafted by pro-life group Faith2Action in around 2011, where it was introduced in Ohio. It did not pass. Since then, the group has lobbied in states including North Dakota and Arkansas, before the bill started gaining headway late last year.

The goal, according to several pundits, is to challenge the groundbreaking 1973 Roe v. Wade decision that has enshrined abortion rights for decades. Many are predicting that a major Roe v. Wade challenge will be put on the Supreme Court docket in the coming session, which runs between October 2019 and June 2020. 

But it could take a while for any of the current abortion bans to make their way to the Supreme Court. In order to be heard, a case has to pass through the trial court, then an appeals court, then wait months for a decision to be made. Only then can it be escalated to the Supreme Court. So how likely is it that the Heartbeat Bill will make it there? 

How can courts stop the Heartbeat Bill?

Thus far, none of the six passed Heartbeat Bills have become actual law. Though they have all passed through their respective State Houses and have been signed off by their state governors, district courts have defeated them in states where legal action has been taken up.

Take Mississippi, for example, which blocked the Heartbeat Bill in that state on 24 May in a district court presided over by Judge Carlton Reeves. He ruled that the bill is unconstitutional, and has previously ruled on a planned abortion ban in a similar manner. This new law, he wrote, “smacks of defiance to this court”. 

“Here we go again,” his judgement read. “Mississippi has passed another law banning abortions prior to viability. The latest interpretation bans abortions in Mississippi after a fetal heartbeat is detected, which is as early as six weeks…. So a child who is raped at 10 or 11 years old, that child does not open their mouth, doesn’t tell their parents, the rapist may be in their home, nobody discovers until it’s too late – that is a fetal heartbeat has been detected – that child must bring the fetus to term under this stature, if the fetal heartbeat can be detected.”

Mississippi’s Governor Phil Bryant deemed Reeves’s decision “disappointing”. “As Governor, I’ve pledged to do all I can to protect life,” he said in a statement. “Time and time again the legislature and I have done just that. I will encourage the Attorney General to seek immediate review of the preliminary injunction.” 

But the Center for Reproductive Rights termed it an unequivocal victory, and promised to keep fighting against every state that passed abortion law reforms. “Once again, the rule of law has prevailed over political plots to control personal health decisions. We’ll fight tooth and nail to make sure all of these bans meet the same fate.”

Alongside Mississippi, courts in Arkansas, Iowa, Kentucky and North Dakota have all ruled against the Heartbeat Bill. 

Where does the Heartbeat Bill go from here?

When a district court rules against a law, the state has the chance to appeal the decision in the Court of Appeals for the Fifth Circuit. According to the New York Times, this is exactly what Mississippi plans to do. “Republican politicians in Jackson have effectively pledged a blank check to try to defend the law,” the paper reports. 

If the law is blocked by the Court of Appeals, the state has recourse to escalate it to the Supreme Court. And that’s where things start to look tricky.

Conservative judges now hold a majority in the Supreme Court, thanks to the appointment of Justice Brett Kavanaugh. The conservative justice was appointed to replace Justice Anthony Kennedy, who held the swing vote in between the conservatives Justices Neil Gorsuch, Clarence Thomas, Samuel Alito and Chief Justice John Roberts. Over on the more left-leaning side are Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer. Today, the Supreme Court leans conservative. 

Taking the Heartbeat Bill to the Supreme Court has always been the plan, according to Steven Aden, the chief legal officer for Americans United for Life, an anti-abortion group. “No Heartbeat Bill anywhere has ever saved a human life because, to my knowledge, they’ve all been struck down by federal and state judges – and that was predictable,” Aden told CNN. “They are unconstitutional under current federal constitutional law. They were designed as a vehicle to challenge Roe in the Supreme Court, but they won’t get to the Supreme Court unless you can convince four members of the court that fifth member would go with them to uphold the heartbeat bill.” 

How likely is that to happen, now that the fifth swing member of the Supreme Court is Kavanaugh? It remains to be seen.

During his Supreme Court questioning, Kavanaugh told Senator Dianne Feinstein that he believed Roe v. Wade was a “settled Supreme Court precedent”. “One of the important things to keep in mind about Roe v. Wade is it has been reaffirmed many times over the years, as you know,” he said at the time. Though this isn’t an indication on how he feels personally about abortion reform, it seems as good an indication as we’re going to get right now as to how Kavanaugh feels about abortion law, which is to say he feels that it has “settled” legal precedent. 

Many abortion rights activists are taking this as a sign that if a Heartbeat Bill ever makes it to the Supreme Court the majority would not swing to pass it.

More concerning, though, is the idea of a longterm dismantling of Roe v. Wade, piecemeal by piecemeal. This could be achieved if segments of the Heartbeat Bill are ruled constitutional by the Supreme Court but not the whole. And thus, this decades-long precedent on access to abortion could begin to crumble.

Maybe it won’t happen. Maybe it won’t make it to the Supreme Court. Maybe, even if it does, the votes will fall against it. Maybe. Or maybe not.  

Images: Getty