Richard Doerflinger
A More Human Society
October 5, 2021 // A more human society

Thinking about the heartbeat law

Richard Doerflinger
A More Human Society

Most public issues these days seem to provoke angry dispute and mutual recrimination. Those divisions can tempt people to misstate or exaggerate facts, to persuade others — or even themselves — that they are right and their opponents are not worth thinking about.

Abortion is one topic where emotions run high and create that temptation, which brings me to the new Texas “heartbeat law” that is in the news. The most remarkable things have been said about this law by people who apparently have not read or understood it.

The law requires a physician, before performing an abortion, to determine whether the unborn child has a heartbeat detectable by usual medical standards. If so, the abortion is allowed only if there is a “medical emergency” that “places the woman in danger of death or a serious risk of substantial impairment of a major bodily function.”

The law does not say this is “when life begins.” It says a fetal heartbeat has become “a key medical predictor that an unborn child will reach live birth,” and a woman should have that information in deciding about her pregnancy.

One column in a Texas newspaper calls this the state’s “latest attack on women,” which “criminalizes abortion after six weeks, before most women realize they’re pregnant.” In a major medical journal that should have standards for accuracy, a law professor accuses the law of “prohibiting even the earliest abortions.”

But the Texas law has no criminal penalty for anyone, and no legal liability of any kind for women seeking abortions. The U.S. Centers for Disease Control says 40% of abortions in the U.S. (39% in Texas) are performed at or before six weeks, about half of them by drugs rather than surgery. Over-the-counter pregnancy tests show a positive result well before this point.

The wildest rhetoric is reserved for the law’s mode of enforcement. A private citizen may bring a civil suit against the abortion practitioner and others who helped make sure an illegal abortion was performed.

U.S. attorney general Merrick Garland says this makes citizens “bounty hunters.” The aforementioned journal article, titled “Vigilante Injustice — Deputizing and Weaponizing the Public to Stop Abortions,” likens Texas to “the East German Stasi” that used private informants to help imprison dissidents. A Yale law professor says Texas has created a “private army,” a “militia” that undermines government’s obligation to “monopolize the use of force.”

I know litigation attorneys have been called “hired guns.” But this equating of lawyers with an armed paramilitary force is a ridiculous way to trivialize actual violence.

The fact is that, for many years, laws against abortion as well as assisted suicide have been enforced in whole or in part through such civil suits. So have environmental laws. A competent law professor should know this.

And since 2013, a bill in Congress has endorsed this approach as a way to promote abortion throughout the nine months of pregnancy. Pro-life legislators in Texas simply borrowed their opponents’ idea.

This Women’s Health Protection Act, endorsed by President Joe Biden and now approved by the House of Representatives, authorizes lawsuits and collection of damages by “any individual or entity” who claims to be “adversely affected” by even a modest limit or regulation of abortion.

The House-approved version adds suits against those who try to sue illegal abortionists in Texas. Should we call this Mr. Garland’s private army?

Amid the false and disingenuous accusations, what is at risk of being forgotten is that little heartbeat, trying to survive against some powerful forces that want it stopped.

Richard Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.

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