silhouette of a baby and a heartbeat

Is the Fetal Heartbeat Bill Viable?

The bill making it a crime for a doctor to perform an abortion (except under limited circumstances) once a fetal heartbeat is detected is “Exhibit A” among the perils of lawmaking and constituent advocacy. I spent six years of my life as a state senator and another eight years as a citizen working to rid our state constitution of a court-created “right” to abortion, so I get the dynamic. I believe in the bill’s cause and the good intentions of those legislators and citizens who support it, but here’s why I just can’t be among them at this point.

The Difficult Job of Being a Legislator

Being a legislator is hard. Being a constituent can be even harder because most people don’t have any clue what being a legislator is like.

The public needs to appreciate that most legislators are not “schooled” in the law. It’s not that only lawyers should serve in the legislature, but state lawmakers are hemmed in between two constitutions—the U.S. Constitution and the state constitution—that they must understand.

That can be a problem because many legislators don’t really know the real specifics of those constitutions. I am not saying that to their shame. The same was true for me; I didn’t even read the state constitution until after I got elected. But as a lawyer I had a huge head start in understanding it, not to mention a huge head start with the U.S. Constitution I’d studied in law school. Constitutions are not easy reading, because their words often have certain legal connotations and historical contexts unfamiliar to most legislators and citizens.

Moreover, legislators have to recognize that whatever they think the constitutions allow or prohibit is subject to the check and balance of a judicial branch that, for better or worse, can hold that a law violates one or both of those constitutions and enjoin the law’s enforcement.

Complicating things more is the fact that the public may know even less about the two constitutions and may be under-informed with respect to the content of the legislation it supports and on which it demands action. The legislation may be poorly drafted and inadequately supported in the legislative record, which is what courts often look at to determine what the legislature was trying to do (think in terms of the importance of a doctor’s records in defending a doctor in a malpractice lawsuit). The public doesn’t understand that, if passed anyway, the law will be shoved back into everyone’s face by a court and for good reason.

Given the convergence of complicated legal and constitutional issues and pressure for action from a well-intentioned, but often under-informed constituency, being a statesman is hard. It’s hard to say to them, “Hold on. Let’s slow down. Let’s get this right even if it takes longer.”

Is a ‘Slower’ Heartbeat (Bill) Healthier and More Viable?

I remember former Sen. Bob Rochelle, often a protagonist of mine, saying, “Sometimes the slower you go the faster you get there.” In other words, the goal should be to get it right, not get it done, particularly when you know you’re going to wind up in court.

I have commended this approach to some of the key legislators relative to the heartbeat bill without any apparent success. So, were I still a legislator, I would have had to raise these questions on the floor and abstained from voting in favor, as some others did.

Among the several reasons is the fact that the majority in Planned Parenthood v. Casey, the last major abortion case, outlined what the Court would look for in future cases in order to justify reversing a precedent like Roe, one that lawyers, judges, and citizens have relied on for decades and one that has woven its way into our social fabric. There was nothing in the heartbeat bill or the legislative record that addressed those points.

To me, that’s a bit like ignoring what my Dad said I had to do in order to go to the Senior Prom and then asking him if I could go any way. With my Dad, asking would be pointless (and perhaps unhealthy), and I suspect it will be so with the heartbeat bill and the U.S. Supreme Court.

What’s Important to the Court Must Be Important to Pro-lifers

Let’s be honest, the United States Supreme Court cares greatly about the public’s perception of its institutional integrity. Belief in its integrity is the only means by which the Court can “enforce” its opinions. When the U.S. Constitution appears to “change” because there is a new justice on the Court, the Court becomes very concerned that it will look political (which it too often is, but it tries to keep up the pretense that it’s not). That’s why the Court set forth guidelines for reversal in the Casey case.

Institutional integrity is a huge issue for Justice Roberts. It explains some of Roberts’ quirky decisions of late. A bill and a legislative record that ignore this consideration will not get Justice Roberts’ support, and on abortion, the pro-life community cannot lose his support.

Understanding this unavoidable check on the legislature’s powers and how the Supreme Court works in regard to long-established precedent cannot be ignored. If it is, the odds go way up that the law will meet with judicial defeat and be enjoined.

What Would I Do?

If it were me, I would start over. Over the summer and fall, I would work on addressing all the issues that are out there. I would work with medical doctors, constitutional scholars, sociologists, and even metaphysicians and psychologists who can and will provide testimony relative to medical science, constitutional law, cultural impacts and considerations, and the implications of worldviews that connect or disconnect our objective essence as living beings from the subjective of “personhood,” respectively.

In other words, I would craft a bill and create a legislative record upon which pro-life lawyers could take on the United States Supreme Court with every potential weapon at their disposal.

Without this kind of serious work being done (and it’s too late to do it this session), I fear the heartbeat bill won’t be judicially viable. But if it passes, I hope, for the sake of the unborn, I am wrong.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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7 replies
  1. James Silberman
    James Silberman says:

    I agree that we need a logically coherent bill that establishes the personhood of the unborn if we’re going to challenge Roe, and I agree that the Heartbeat Bill doesn’t do that. The only bill that provides a consistent establishing of prenatal personhood is a bill that says life begins at fertilization and every human being is a person. Anything less would be inconsistent and just as arbitrary as the Roe decision. The court would have no reason to change their mind for anything other than a bill that establishes personhood from conception because anything else is hypocritical nonsense.

    And when you say it’s “unhealthy” to push the court without obeying what they said, you’re displaying a horrific misunderstanding of history and the Constitution. What’s unhealthy is the belief that the Constitution grants unlimited power to the courts to do whatever they want up to and including forcing states into allowing murder. That’s the tyranny the Constitution was written to fight against. There is currently no check on the court’s power. We’ve got to reject the court’s self-appointed authority to strong-arm states into legalize murder. We have a legal and moral obligation to ignore Roe and abolish abortion. Read more here: https://theresurgent.com/2019/02/28/immediate-not-gradual-abolition-abortion/

    Reply
  2. Robert Roark
    Robert Roark says:

    David, I cannot disagree with the reservations you have about law and precedence and the institutional integrity of the court and unschooled legislators. I also cannot agree that these reservations should be the overriding considerations when the lives of innocent children are at stake. If your reservations are so crucial to the court, why haven’t you or those in organizations like yours done this kind of information gathering and prepared the kind or legal arguments that would have achieved the objectives in your start-over plan? Forgive my frustration, but, after 40+ years and many organizations seeking untold dollars to stop abortions, we seem to be no closer to making this happen than when we first begun. Is our culture so far gone that stopping abortions is beyond our ability, means, or sense of urgency?

    Reply
    • David Fowler
      David Fowler says:

      Actually, Robert, I did what you suggested. I tried to say it nicely, “I have commended this approach to some of the key legislators relative to the heartbeat bill without any apparent success.” I, along with others who believe we need to challenge Roe, tried to take the proverbial legislative horses to water but we can’t and couldn’t make them drink. So, for me, it’s doubly frustrating.

      Reply
  3. David Schaffer
    David Schaffer says:

    It does not matter what the courts say as California, Oregon, and Colorado have all proven with legalizing marijuana. It is time for Tennessee to defy the Tyrants of the judicial system and abolish abortion!

    Reply
  4. Brian Hale
    Brian Hale says:

    Pro-choice legislators in New York have with fanfare embraced infanticide to make Roe v Wade look like a moderate position preferable to state by state abortion battles. As usual, we are negotiating with ourselves and compromising from the beginning. Humanity begins at conception, not at heartbeat. Nonetheless, slower is faster if slower means doing things right — consistent with our real principles and beliefs, not with temporizing positions.

    Reply
  5. Frank Tarrance
    Frank Tarrance says:

    I believe that the left have crafted a tool call (you can kill a baby the second before it is born.) this tool can now be used to scare both Rep. and some Dem. to agree to a law that will still alow abortion to be done for any reason up until a heart beat is detected . These left know they will not get all stated to go with the tool they created but it will serve the purpose to keep plan parenthood in business and keep the money coming in. They know abortions will still happen anyway.

    Reply
  6. Cynthia Moulthrop
    Cynthia Moulthrop says:

    The heart beat bill is moot. Life begins at conception Recent science journals have confirmed electrical Sparks, little fireworks, if you will at the moment of conception. The child is alive at that point. A heart beat doesn’t make the child more or less alive. Abortion at any time is murder, infanticide. We are no different than the ancients who sacrificed their children to Moloch. We just sacrifice them on the altar of self.

    Reply

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