Barring some sensational last-minute reversal, the leaking in early May of Justice Samuel Alito’s draft majority opinion in the Supreme Court case of Dobbs v. Jackson Women’s Health seems to herald the end of the constitutional right to terminate a pregnancy in the United States.
As we await the final verdict, thoughts naturally turn – amid great anxiety, for those of us with liberal or ‘pro-choice’ commitments – to what legal regime might come next. What will those who have been fighting so relentlessly for the ability to pass abortion restrictions going beyond current constitutional limits do with it, exactly?
At issue in Dobbs is a Mississippi law that generally prohibits abortion after the fifteenth week of pregnancy.
But there is another, considerably more restrictive proposal that has been rather more in vogue among the American anti-abortion political coalition in recent years. It has not only been the basis of legislation in a number of states, but is also apparently increasingly seen as the preferred model for a nationwide abortion ban, should the opportunity to enact one arise.
The proposal in question is for a ‘heartbeat ban’ – a prohibition on abortion from the point at which a fetal heartbeat is detectable, which proponents of such laws allege to occur at around six weeks into pregnancy.
Although prohibiting abortion from six weeks is somewhat less restrictive on paper than doing so from conception, as the anti-abortion movement has more traditionally advocated, the difference in practice is likely to be negligible, since pregnancy is usually not discovered at that very early stage.
As a matter of principle, however, heartbeat bans seem to involve a noteworthy departure from the conventional ‘pro-life’ commitment to the wrongness of abortion from conception. It is worth asking what might have prompted this. And since interfering with people’s rights to control their bodies and avoid unwanted parenthood requires a very strong moral justification, it is also work asking what the justification for banning abortion at the appearance of a fetal heartbeat could possibly be.
When we ask these questions, I think we find not only that heartbeat bans lack a substantial rationale, but that they implicitly trade on moral considerations that may yet backfire on opponents of abortion.
On one level, it is easy to see why ‘pro-life’ strategists would be attracted to heartbeat bans.
For those who are not already sympathetic, the claim that an embryo, from the point of conception, even when composed of just a single cell, is morally equivalent to a child can be hard to fathom. And the explanation for this claim that perhaps most often moves ‘pro-life’ advocates – that the embryo from conception has a soul, or has been made by God – is an unsuitable justification for restricting people’s freedom in a liberal democracy, characterised by church-state separation.
The idea that a creature with a beating heart merits our compassion and protection, by contrast, might be expected to have more widespread and immediate intuitive appeal. Heartbeat bans, to that extent, may seem like savvy political messaging.
But that is not the same as saying that the onset of the heartbeat is morally significant in itself, or that it marks the point at which an embryo or fetus begins to have rights, or matter morally for its own sake. And, in fact, I think it is clear, on reflection, that cardiac activity cannot have this sort of ethical importance.
To see this, consider a case beyond the immediate context of abortion: that of an anencephalic infant. These infants are born without the parts of the brain needed to ever be conscious, to think, feel, and so on. They may, however, at least for a while, have a spontaneous heartbeat, and be capable of other basic bodily functions. Suppose that, with mechanical support, at large cost, we could keep such an infant alive indefinitely. Would we have reason to do this, for the infant’s own sake, when it will never be able to live, in what most of us think of as a meaningful sense? It is extremely hard to accept that the answer is yes. That suggests that a heartbeat is not enough for a creature to have rights, or matter morally, in the way you or I do.
Why, then, the recent galvanising of the ‘pro-life’ movement around heartbeat bans? The answer, I suspect, turns not on what the heart is but on what it represents. The heart, in our collective cultural imagination, has a significance well beyond its role as the organ which pumps the blood. We think of it, figuratively and superstitiously, as the seat of the emotions.
To ‘lose one’s heart’, for instance, is to fall in love. To be ‘heartbroken’ is to feel acute emotional pain. To appeal to the fact that abortion stops a beating heart is to tap into those associations. It is to elicit the sense that abortion ends the life of a being that can feel, and suffer.
But politically astute as that move may seem for opponents of abortion, rhetorically and argumentatively it is not risk-free. Heartbeat bans seem to abandon the idea that an embryo is morally considerable in itself from the moment it exists, and to grant that it must meet some later gestational milestone first. And once that point is accepted, there is another milestone that far better reflects the moral sensibilities which heartbeat bans seem to be attempting to harness: the development of the capacity for sentience, or conscious awareness.
Unlike a being with only a heartbeat, a being with this capacity is indeed able to feel. It is a being of which it makes sense to say that things can matter, and go better or worse. That may still not mean that it has the full rights and moral value that you and I possess, or that an abortion after this point can never be justified. But if the fetus does not become morally considerable before this capacity is acquired, this would seem to vindicate abortion rights of comparable permissiveness to current constitutional arrangements. For it apparently remains a matter of scientific consensus that conscious awareness is not possible until at earliest 24 weeks.
The ’pro-life’ embrace of heartbeat bans, in short, is more than just a shift of campaign emphasis. It seems to involve an implicit moral concession of considerable significance. It may be a forlorn hope that America’s oncoming abortion debate can be fought and decided on the moral merits. But if it can, defenders of liberal abortion access can win.
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