Anti-abortion activists almost salivated in saying that “it all comes down to Alito,” as they hoped the Court might affirm the recent restriction of women’s access to abortion in the state. Right to Life groups were particularly ardent about Alito’s willingness to allow the Texas Heartbeat Act, which was up for review from the court, as if their efforts were getting national attention and could tip national law. John Seago, as legislative director of Texas Right to Life, expected Justice Alito to represent the interests of his organization, as he deferred to the judgement of one Supreme Court member in open terms, as if to privilege his role as an intercessory advocate: “We are [just] hopeful that Justice Alito will examine why the [request to stop the law being enacted on constitutional grounds] should ultimately be dismissed,” hoping to find a like-minded member of the court to recognize Texas’ right as a state to define wrongs against a public good that would trump personal rights.
The introduction of the elusive and illusory “fetal heartbeat” as a mandated threshold for medical care created a sort of mirror in which to provoke penitent reflection , the “now-you-see-it-now-you-don’t” quality of whatever flicker of motion is detectable in a sonogram of a fetal pole so illusory that the measurement that was introduced in prenatal clinical care as a means to reassure women of the viability of their pregnancy is both not a heart beat and in fact impossible to measure, even if it seems to be about to admitted in court as a grounds for criminalization.
Legislators across several states have compelled women seeking abortions to undergo, irrespective of medical need, compulsory transvaginal ultrasounds, for the past ten years, using invasive insertion of a probe into the vagina to generate an ultrasound image now regarded as a basis for juridical truth. The invasive procedure now not only offers a means of dating pregnancy; the mandating of ultrasounds across much of America, as Texas, Louisiana, Wisconsin and Oklahoma all voted to mandatorily display and describe the image of an ultrasound to the woman in preparation for the abortion, regardless of a physician’s will or medical need, making the viewing of an ultrasound was part of the procedure of abortion for woman in South Carolina, Georgia, Ohio, Arkansas, and Idaho–all Republican legislatures. The mandated insurance introduced in the America Cares Act led to a jump on “legal” restrictions on abortion since 2011, as local state legislators introduced 1,100 reproductive health and rights-related provisions and adopted 135 ways to qualify women’s access to abortion in 36 states, as if in a dialectic relation to attempts to expand an individual mandate for health insurance for all. Is it a concerted strategy not only to curtail reproductive rights, but to a wedge against the desired expansion of an indivdual mandate for health insurance? The growth over the years from 2010-2013 of mandated ultrasounds across the United States provided a sort of resistance; as mandated ultrasounds grew by 2013, their effect unclear, but were mandated often with an opportunity to view whether or not the woman “availed herself” of the opportunity to view–or a mandate to view and have described in Texas, Oklahoma, Louisiana, North Carolina and Wisconsin, as if an exercise of biomedical introspection.
The very image-making technology relied on to record a so-called fetal “heart beat” at the center of Texas State Bill 8–as well as to date the abortions after six weeks that it would make a crime–had been on the books in many states; if the images were rarely used as evidence that further restricted access to abortion, they have become a basis, once admitted as legal evidence, to restrict reproductive health by introducing the “personhood” of the fetus into state legislation in ways that were not imagined or fully foreseen. The image-making technology able to confirm viability of a pregnancy was recently hijacked in Texas to remap the start of personhood in the embryo, would dangerously remap women’s access to medical or reproductive care. The rise of local laws, from 2010 in Michigan and 2012 in Virginia, require doctors, irrespective of medical need, to furnish women–even for victims of rape or incest–with a photograph of the ultrasound, hours before the procedure occurred, a moment of “viewing” that is intended to provoke introspection, but this seems a rhetorical hope without actual impact in women’s decision to terminate their pregnancy: if women appreciate the option to view an ultrasound, limited studies found, viewing images of the embryo before first-trimester abortions, those who viewed mandated ultrasounds were unlikely to stop their decision, if earlier decisions to terminate pregnancies might shift to continuing pregnancies to term.
The physically intrusive procedure of registering the embryonic activity now serves to date an abortion’s compliant with state law in Texas and generate a legal document, from which a physician cannot opt out, that will enter a woman’s personal medical record, more than a measure to judge fetal health for medical ends, but to prove fetal personhood; mandating ultrasounds become a form of state surveillance in recent “heartbeat” bills analogous to SB 8. It would justify the apprehension of “guilty” parties and all complicit in assisting a crime. The Texas legislators about Governor Abbott posed in triumphant chorus, eight women joining male legislators in using hands to form a heart to demonstrate their collective love for the unborn in an official House photograph. Their action fetishized the “heart” as a rounded sign widely shared on social media affirmed electric impulses in the embryo’s cardiac chambers signified personhood, and the common identity of legislators in a new political strategy, signing emotional identity with the unborn and a collective political mobilization, the “heartbeat” a collective acknowledgement of a bill that strategically imposed their will on the state.
The circumscription of abortion rights is of course the goal of such recent legislation of health policy. The crusading legal architect of the new state-wide policy, Stephen F. Mitchell, put it even more bluntly before the Supreme Court, by lamenting the court’s imputation of any “‘right’ to abortion” as only a purely “court-invented right” that was judicially concocted with no constitutional grounds.
But the public safety dangers of the reign of terror that has inspired fears in so many abortion clinics to shutter their doors for women before they would even realize their pregnancy is a terrifying denial of medical care. The Texas Governor addressed anti-abortion activists alone when, in a signing ceremony, he praised “our creator” for having “endowed us with the right to life”–taking pleasure in the deeply distorting version he presented of human rights claims–adopting anti-abortion claims by ensuring “that the life of every unborn child that has a heartbeat will be saved from the ravages of abortion” as if this invasive procedure would convert all women seeking abortion to Magdalenes. As 49% of the almost a million American women who underwent abortions lived below federal standards of poverty in 2014, an growing demographic among those clinics surveyed, the largest proportion among those describing themselves as unmarried, although claims for Magdalene’s promiscuity and poverty was a story strategically spun by Pope Gregory I in 592, although the exorcisms and penance of Mary were of scriptural origin; the image of the repentant woman who could preach abandoning the sinful path of abortion by recanting her decision to terminate pregnancy and carrying to term would illustrate her faith and conversion seemed a storyline that antiabortion activists relished in imagining a prominent role for women as advocates of their cause.
The redemption that Abbott acted as if he might promise residents of the state of Texas was, of course, contingent on the circumscription of the rights of pregnant women. We are, post-Trump, perhaps only beginning to come to terms with the effects of the cases about abortion rights invited by the new stamp that Trump put on the justices of the United States Supreme Court, for whom abortion could be recast by local legislators and local votes, as Antonin Scalia had sketched in his dissent to cases about Row and abortion rights–rights he claimed invented and absent from the Constitution.
What we may map as a Texan peculiarity suggests dramatically receding windows at which women can seek abortion of undue restrictiveness on a far broader map. While Texas offers a reflection of long-term restrictions on access to abortion poses health care problems a state where constitutional rights are under attack–creating twin deserts of women’s health care and rights that should make everyone rage. Although access to abortion is described as “settled law,” on the federal level, the insistence Roe v. Wade or later decisions entitling women to seek abortions as a matter of constitutionally protected rights to privacy has been revealed to be a vulnerable protection of civil rights by the current attempts of town councils or state legislators to push back on precedent. By 2016, but sixteen clinics served women across the state; “Sanctuary Cities for the Unborn” in the state multiplied soon after the June 2019 decision of the city counsellors of Waskom, TX , 5-0, as part of a concerted strategy to ‘outlaw abortion, one city at a time,” as much as a grass roots movement. The vote encouraged some thirty-eight cities to pass ordinances outlawing practice of abortion in their limits, voting against abortion in a strategy Justice Antonin Scalia advocating abortion demanded to be understood by voting on local laws, as it had no actual constitutional basis in a literal reading of the frames; following declarations of Waskon and Lubbock in Texas, twenty-five other municipalities in Texas, Nebraska, and Ohio adopted the strategy of the former Texas Solicitor General Jonathan F. Mitchell, who had clerked for Scalia, to curtail access to abortion at a municipal level of governance. Mitchell offered legal assistance to frame local statues to circumvent reluctance among Attorneys General to criminalize abortion, triggering a fake grass roots city-by-city battle against to undermine federal precedent or judicial consensus by city councils’ municipal secession.
Texas stands as a site to break precedent on a national scale, disrupting consensus by adopting a precedent in which municipalities, counties, and state legislators develop tools to push back upon long-established consensus. After a spate of “trigger laws,” designed to take effect if and when the Supreme Court , taking what was settled law into a dangerous field of “direct democracy” and false populism as a contravention of “Texas law” or of what Texas is unique, perhaps, exploiting legal double-speak, since presenting the 2012 attempt to confine abortion access to hospital settings as preserving women’s health care, to the recent emergence of a discourse on “fetal rights” and fetal personhood, long a staple of anti-abortion activists, that has lead to a state bill invoking legal models of bringing suits against medical malpractice and the circumscription of freedoms, but are designed to circumscribe women’s rights to access to quality health care.
As lawyers have reasoned that the courts had “concocted” a “right to abortion” undermining the public good, they have concocted the detection of a “fetal heartbeat” in the embryo as able to be read as grounds for personhood. This far more dangerous fiction of mapping identity in an organ whose chambers are not yet fully formed, but a powerful designator of humanity, is all the more apt to be read as one by the untrained, ready to see in the ultrasound what they want to see. The fiction of scientific objectivity led Texas Right to Life to distribute “Ordinances Abolishing Abortion” to towns from August, 2019, as boilerplate for city councils to “take matters into your own hands by petitioning your local government to protect unborn children”–by creating far more restrictive understanding of reproductive rights in the nation. These ordinances not only restrict access to abortion, but provide a dramatic curtailing of women’s access to reproductive health of serious risk to the nation and the country. For with the expanded affirmation of access to abortion in several states in the northeast and west, the municipal votes in Texas suggest a local disruption of legal consensus long in the making, and seeking to divide the nation in the health rights it guarantees pregnant women.
We understand Texas, in the popular imagination, as the periphery: near the promise of the “border wall,” it has emerged as an edge of America, To be sure, the on-the-ground picture in Texas of access to abortion has revealed disturbing trends for some time–disturbing trends on a national level as well–that may not have fully been appreciated in those blue state residents often insulated in levels of existential panic. Yet the recent questioning of the difference between burdens due and undue, as if seeking some semantic clarity in an issue that is imputed to be “muddled” by the court’s failure to distinguish burdens that are “undue” from those that are “due” conceals the eagerness of hitting upon a unprecedented stratagem to recast national laws about access to health care in a regressive and retrograde fashion. Despite the huge “abortion deserts”–a map of which nationwide is in the header to this post–that demands being seen as a health-care desert–
The map may be unpacked a bit. The striking distances of abortion facilities to population centroids in counties offers a way to approximate the needed distance of travel to publicly-identifiable abortion facilities, and then observe the shift in distances that would be created by such ‘trigger bans” and outright bans on abortion, as authors of a recent article in Contraception warned their readers already in 2019:
The changes of declining access to abortion were imagined to be pronounced:
When the New York Times tried to map the landscape that the court’s decision could create by one decision, the actuality of affirming the “right” to abortion–in fact a right to privacy or to health care–as a judicial concoction imposed on the nation for women living in the twelve states that have adopted “trigger laws” that reflect a war of values between the culture of urban metro areas providing abortions to women in extra-urban regions whose access will be rather dramatically curtailed and reduced.
To be sure, the landscape in Texas since 2016 was bleak, with most clinics performing abortion only in cities in a very big state indeed, making a landscape ripe for curtailing reproductive rights, creating a stark urban-rural split as a microcosm of red-blue state division at the height of the Trump era: Austin, Houston, and Dallas-Fort Worth were relabelled as “cites of death” in the cartography of Sanctuary Cities for the Unborn, whose very name conjures the national division of the Trump Era. Even after the restrictive statutes of 2013 were struck down by the Supreme Court, Texas Right-to-Life has come to regard itself as battling the legislation of Roe v. Wade for the forces of good, in a landscape that already placed women in one hundred counties one hundred miles away from a clinic providing abortion in the name of the freedom of the unborn.
The threshold for abortion in the state of Texas was pushed back from fetal viability to just twenty weeks after conception, not so significantly different from the twenty-two to twenty-four weeks standard in the nation on paper, but a month that means a significant reduction of reproductive rights.
The current determination of the “life” of the unborn as existing at a cellular level–a platform of anti-abortion activism, dressed in the terms of modern science–suggests bogus indices to clarify what is not that Solomonic a distinction between viability outside the womb and within that Roe v. Wade established. The reliance on increased technologization of pregnancy offers a far more restrictive standard for access to abortion would dangerously curtail public health access of women across the nation–even if the “heart beat” mapped in the embryo by transvaginal ultrasounds is a a visual illusion, transmitted from the maternal heart beat or fluid moving within the maternal bowel where the embryo is developing, but while developmentally unable to be termed a heartbeat, if it suggests the viability of the fetal development. The ultrasound image is masquerading as a language of medical objectivity in red states, however, to magnify “abortion deserts” in “red” states– “abortion deserts” that curtail women’s access to health care and rights to privacy able to gloss the divide between ‘blue’ and ‘red’ states, reading both in increasingly limited interpretations of rights. While Senate Bill 8 asserted abortion was a criminal act of a doctor, a crime no District Attorney would prosecute, the promising of a minimum compensation–better seen as an effective bounty–of $10,000 guaranteed to all citizens, neighbors, family and friends willing to report any attempts to terminate pregnancy by abortion six weeks after conception allowed them to reclaim the status of a longstanding crime in Texas law no District Attorney would deem to prosecute, and only metropolitan areas provide sufficient coverage to pregnant women seeking medical care.
The shifting grounds of access on women’s health care in Texas as been watched for decades in the state, as much as from afar, closing clinics to effect a decrease in abortions, even after the U.S. Supreme Court had queried several of its provisions as “undue burdens” on pregnant women. Even after the suit brought against the State by an abortion provider, Whole Women’s Health, aware and fearful of the dangers that closing abortion providers in South and West on women’s health care, the decrease in state-wide abortions by a third as providers shifted after fifty miles away seems in retrospect a successful ground-game for curtailing access to abortion, and one that encouraged several municipalities to adopt restrictive local measures on abortion access. In ways that seem to have emerged in reaction to the America Cares Act, or Obamacare, the new law suggests how the state became a battleground for finding practices for restricting abortion rights, turbocharged by making restrictions amenable to the new composition of a Supreme Court increasingly eager to letting state law stand, with an eye to reviewing not state policy but Roe.
By entitling all Texans to bring civil suits on their own, however, as agents of the state, legislators mapped out a terrifying geography to trumped a pregnant woman’s Constitutional right to privacy.; SB 8 frames a new geography of health care that restricts abortion far beyond these “sanctuary cities,” offering rewards for enforcing restrictions on abortion beyond six weeks as impervious to judicial review as dangerous acts. By appealing to the collective enforcement of retrograde principles of moral purity, limiting access to health care in the guise of “heartbeat laws” affirm fetal personhood. Exploiting the performance of sonograms from measures of fetal health, the standard procedure after February 6, 2012 was mandated for all pregnant women seeking to abort became admissible evident in civil courts. Women compelled to be shown sonograms by the doctor performing the abortion since 2012 within twenty-four hours of the procedure accompanied by an audible recording of the embryo’s cardiac activity, found the clinical relation to their doctor a way to furnish a legal record of abetting criminal activity and a public form of shaming. The “heartbeat” was not created by an actual closure of tricuspid valves, or a beat identical to the cardiovascular pulse of an extra-uterine environment, or either a basis for viability or as synchronized with breath. But it adopted how ultrasounds have become standard ways of screening embryonic abnormalities of cardiac development during the formation of valves of cardiac chambers and the parasympathetic neural network as ways of encouraging pregnant women to look within their souls akin to a confessional chamber, outside the diagnostic relation to an OB/GYN, or a clinical or hospital setting.
The alleged “heartbeat” that pregnant mothers are compelled to listen in clinics parallels formation of vascular muscles and conductive cells, but it seems a stretch to posit a “heart” or “beat” before the existence of coronary vessels, or cardiac chambers that are connected to the aorta and pulmonary trunk. Yet the mandated encounter with this sonographic registration has changed the clinical setting to a prescriptive encounter that erases any agency or identity of the pregnant woman.
By framing the clinical encounter in ways that serve a legal strategy based on the determination of embryonic cardiac activity–termed a “heartbeat” to invest the embryo with legal personhood–to cast abortions performed beyond six weeks as medical malpractice, and grounds for determining legal personhood or agency in order to establish its criminality against a public good.
At this early stage in pregnancy, the almost visual illusion of the “heartbeat” located in the embryo without any set chambers in the fetal pole that suggests the viability of the pregnancy, but any motion in the forming organ is entirely transmitted from maternal blood flow, her heart beat and her respiration, as much as grounds to invest personhood in the embryo. The visual illusion however tugs on heartstrings to reduce pregnant women’s right to terminate pregnancy or seek an abortion. The reduced threshold of access to abortion compromises privacy, effectively converting the ultrasound developed for maternal health to a mandated event to procure to legal evidence of a crime that would not be admissible in court, focussing on the fetus as a living being by obscuring that the pole or embryo lacks viability outside the mother’s body–and that its cardiac activity is likely triggered only by the mother’s own. The glee with which Gov. Abbott tweeted his pleasure at the passage of the law was a publicity stunt, however, appealing to his supporters as a protection of freedoms–not a dramatic curtailing of public health–and adopting a particularly viscous policy of placing undue burdens on women, by dressing the wolf in sheep’s clothing.
Foregrounding the heartbeat obscured promoting heightened public health risks. Abbott celebrated on Twitter long awaited restrictions on abortion as affirming that “the most precious freedom of all is life itself,” imagining that the overturn of Roe v. Wade and “abortions will be outlawed in Texas. Texas will always foster a culture of life.” As it moved from the medical sphere of the ultrasound to the popular debate, the heartbeat afforded a wildly popular symbol of a social media rallying cry among anti-abortion activists to secure the rights of the unborn, difficult to imagine as either rationale or logically organized, but which gained logic in its slippage of science to popular debate; the heartbeat was removed from indices of fetal development to an unformed squiggle in need of popular defense.
The recent adaptation or cooptation of a whistleblowers’ right to sue any entity committing wrongdoing in any abetting or facilitating of the performance of abortion beyond six weeks distributed agency of legal enforcement as a moral economy of fetal development, outside professional judgement or medical ethics; the law, SB 8, overconfidently casts residents of Texas as District Attorneys and embryologists, based on non-expert acceptance of a cardiac activity, no matter how small, as sufficient grounds to detect legal personhood in need of state protection, as if trumping medical needs by a moral sense. The primacy of precepts of anti-abortion activists was revealed by anti-abortion protestors who proudly held signs in Fayetteville AK, affirming identification of a “Pro-Life” county “committed to the protection of all lives, including the lives of the unborn.”
The increased elision of personal judgement and justice delegated the function of a District Attorney to prosecute it as a crime among all who were convinced of the criminality of helping pregnant women seek an abortion–dramatically circumscribing their access to prenatal health care. The state “law” all but erased or abolished legal agency of the pregnant woman, by treating the ultrasound developed for diagnostic measures as as a determinant factor in assessing criminality, and striking fear into abortion providers for opening themselves to civil suits for violating state law–even as they were only following federal precedent and constitutional statute. Having since 2017 banned insurance coverage of abortion in medical plans, new state anti-abortion laws, currently would further restrict access and place additional burden on women’s rights to health care. In denying the right to health care, and indeed attacking the court for “imposing” an “amorphous ‘undue burden standard” on the state, it is argued, the court itself “invented” and “imposed” a non-existent “right to abortion” without constitutional grounds–although the Constitution, when written in 1787, extends women exactly no rights, if it seeks to “promote the general welfare” or “domestic tranquility. In using the amorphous criteria of the “heartbeat” to allege public dangers of performing abortion beyond six weeks–although over 92% of abortions performed are in the first thirteen weeks, and pregnancy is hard to detect at six weeks–the very question of agency is blurred beyond specificity, as the legally mandated ultrasounds for all seeking an abortion for preserving maternal or fetal health are transformed to a mode of legal surveillance.
Any notion of a “burden” is denied by shifting attention to the index of the heartbeat as a standard of maternal care. In the decade since the Supreme Court found that restrictions on admittance to abortion clinics an “undue burden” on all women, the recent enactment of State Bill 8 shifts the onus of prosecuting abortions from state regulations, sanctioning all citizens–rather than state officials–by affirming the civil rights of any citizen to sue all abetting–or providing–an abortion, implicitly holding that this does not constitute an “undue burden” on a woman’s right to seek an abortion before fetal viability. As Legislative Director of Texas Right to Life, Seago had boasted of his place in this new geography of medical constraints as he framed local ordinances prohibiting abortion in some thirty Texan towns progress toward formulation on a state-wide level: with the assistance of a skilled litigator who had brought many cases of medical malpractice, Texas’ former Solicitor General Mitchell claimed shielded from judicial review and urged judges leave “the abortion umpiring business.” He seemed far more comfortable in proscribing restrictive statutes without any biomedical support: while the option remained squarely in the court of women able to “control their reproductive lives,” an assertion both without grounds and that limits women’s agency to their control of sexualized bodies; to curtail the “false right” of abortion, SB8 invited citizens to bring civil suits against those “abetting” abortion for women failing to show sexual restraint, offering immaterial guidance for setting restrictive limits on abortion’s performance by the fetal “heartbeat” that ultrasounds revealed to the observer willing to find in them evidence of human life.
The restrictive nature of SB 8 imputed actual criminality to the performing abortion, removing its performance from the realm of a pregnant woman’s privacy or from health care by returning it to a question of public good. The hopes to return to a landscape of an era when the extraction of a fetus was illegal, and locating the sanctity of life on a cellular level. In expanding restrictions far beyond the thirty Texan city councils that now self-identify as “sanctuary cities for the unborn,” legal action is now invited against involving themselves in any strategy that “aids and abets an abortion.” In ways that ingeniously appropriate the near forgotten geographical divide of contested “sanctuary cities” that refused to dedicate local resources to enforce federal immigration laws, that had provoked the wrath not only of Texas’ Attorney General, the “sanctuary cities of the unborn” suggest a new divide for the nation, and a hope to politicize divisions with little benefit to public well-being or tranquillity.
Reflecting a recent politics of opposition around immigration rights, the re-designation of “sanctuary” cities use a rhetoric of religious protection to curtail abortion may provoke a similar national divide, and to seek a newly receptive Supreme Court open to restrict the pregnant women’s constitutional rights to privacy.
The re-appropriation of so recently divisive a term seems perversely designed to create a shift in the national landscape had precedent as a form of polarization–and polarization is something Texas does well. Immigration laws were pushed back on in the Trump Era even in the “red” state by Dallas, Austin, and Houston, who, siding with families of immigrant populations, had proudly declared themselves to be sanctuary cities by refusing federal executive orders on immigration that were hardly democratic laws with legal precedent, taking municipal funds off the table for their enforcement. The newly declared largely rural “sanctuary cities for the unborn” reveal a counter-geography of sorts, echoing the state legislature’s banning of any city to comply with federal immigration law, not assuming they would not face legal challenges, but almost inviting them.
But although It is tempting to see SB 8 as an issue of red states like Texas–or the south–perhaps because the rift in standards of health care are so extreme–but we would do well to regard those “red” states are grounds for battle lines for staging a struggle against abortion nationwide. For in 2021, eleven states adopted ninety laws meant to restrict women’s access to abortion — the most in a single year since the 1973 Roe v. Wade established fetal “viability” outside the womb as a threshold for women’s right to abortion. “Heartbeat” laws posit a “fetal heartbeat” as the index that would mandate ultrasounds for abortions, no matter at what stage of gestation, to determine “according to standard medical practice, whether the fetus has a detectable heartbeat,” even if the putative beat is a legal creation more than a medical one, and the “flutter” perceived in sonograms suggest the first cardiac cells in an embryo firing electrical signals, more than they map onto an individual, and has no bearing on the viability of the heart, the embryo, or the pregnancy. Yet the legal fiction of a “heartbeat” is presented as a technologically modern registration, able to reframe constitutional rights and health laws and the legal high ground, even as abortion rates had fallen nationwide.
The shifting landscape of reproductive health care is not without a clear echo of the way states “stood their ground” in local refusal to accept federal health care funds, akin to separatism–leading a full twenty-six of the lower forty-eight states to outright exclude insurance coverage for abortion in medical marketplaces.
The ban on insurance coverage for abortion seem draconian. The recent radical reduction of access to clinics–and criminalization of abortion–in Texas dramatically reduced access to abortion clinics beyond insurance coverage. Determined not by medical grounds, but by state legislators, Texas is poised to redraw the constitutional right by an illusion of direct democracy. The result of SB 8 is to undermined the geography of health care in terms of the preservations of freedoms–the unvocalized or expressed freedoms of the unborn–to challenge the nation’s legal landscape by local resistance to longstanding constitutional rights. The devious legal stratagem of denying precedent outright was spread by the diffusion of local laws on online templates that were announced to be able to withstand court challenge or judicial review, leading many to seek to affirm the.local purity of places that imagined themselves as contemporary Cities of God. The drive to preserve the purity of their domains, spread by many preachers in Texas, grew as an imperative, as Gov. Abbot put it, or to show the nation that ˆ”no freedom is more precious than life itself” in Texas, although the assumption of life or freedom as what an embryo enjoys seems to debase freedom as a term. Abbott embraced this rather tautological precept of anti-abortion activists of fetal personhood, as he took pleasure in celebrating the day the act banning abortion for those in their sixth week of pregnancy–when it is hardly perceived–in full knowledge the preponderance of medical procedures are performed in the first thirteen weeks of pregnancy, even if Roe v. Wade guarantee rights to abortion before 22-24 weeks, or viability.
The shift of threshold the state law would create chaos in health plans across the state. Over the strong objections of Texan lawyers who feared it would also undermine principles of the state’s the legal system, by categorizing the procedure of abortion of an undeveloped embryo as a crime against the state and construing personal injury, and personal freedoms, the potential clogging of local courts was less the intent than to paralyze health networks by fear. Mitchell helped cities curtail abortion at a municipal and state levels, as if they clarified the state’s role in relation to well-being of citizens launched a legal run-around to criminalize abortion at an early threshold, impervious to judicial review. B8 effectively financially compensates private citizens who bring successful civil suits on behalf of the state, not openly denying women’s constitutional right but ensuring women live in fear. Texas Right to Life offered online legal boilerplate for setting up “Ordinances Abolishing Abortion” from August, 2019, using a language of self-governance to urge Texans “take matters into your own hands by petitioning your local government to protect unborn children.” The specious “direct democracy” about abortion promised an absence of shared consensus, in a call to legal separatism seeking to commandeer national legal discourse, even as rates of abortion have declined, elevating abortion rights to fighting words of moral purity, hoping from attention from eager ears of the newly balanced US Supreme Court, in which the federalist Society’s fetishization of “freedom” and liberty seems ready to be extended to the embryo.
The hope to reframe the law of the land is dressed in deeply coercive strategies, however, both surveilling women’s wombs by mandated sonograms and triggering a landscape of fear by dangling the promise of a bounty of a minimum of $10,000 to encourage a sort of righteous surveillance among extended family members, at school, or university, or at workplace settings, all of which offer ripe settings to snoop on any facilitation of an abortion or any suspicion that a pregnancy has been terminated after six weeks–netting the vast majority of abortions performed as few women are likely to be aware of pregnancy before a short month and a half window. The geography of restrictions on abortion is telling, and is a landscape that is confusingly changing, in ways that many will be both disoriented and confused, as it lacks uniformity. If Texas has long been seen as a “red” state, it is less “red” than on the cutting edge of promoting sonograms as a threshold limiting access to abortion–already limited beyond six weeks gestation in Idaho, Oklahoma, South Carolina, and Texas, as if preparing to send cases to a Supreme Court dominated by justices appointed by Donald Trump. The recent skyrocketing of six-week bans across the country in Mississippi, Kentucky, Ohio, and Georgia are a hangover of the Trump presidency, in which a new landscape of restrictions on reproductive health planned to spread to the state legislatures of Missouri and Tennessee. There is also traction beyond red states in filing for such bans by legislators in Illinois, Louisiana, Maine, Maryland, Minnesota, New York, South Carolina, and West Virginia.
The rise of six-week bans in the territory of “red states” is not confined to red states alone. Although other state legislatures and Governors have signed draconian laws into effect–as Alabama, where abortion at any stage is called a punishable felony–the “heartbeat” laws openly pit local legislations against constitutional rights, promoting technological determination over women’s rights. As increasing states constrain access to abortion, omen’s constitutional access to reproductive health is pressed between the technologization of reproduction and an increasingly authoritarian legal culture. Many states adopted “heartbeat laws” before Texas devised its vigilante policy to incite civil suits on behalf of the state for facilitating abortions six weeks since conception–
–eighteen have prohibited abortion after twenty weeks, as had Texas, a year before SB8 narrowed the window.
–if few have understood the “public good” to preserving the freedoms and liberty of fetal lives as something that merits judicial consideration as an offense that is tantamount to medical malpractice.
The broad shift in curtailing access to clinics predicted if Roe was overturned suggested the impact of the new state regulations if local ordinances took precedent over constitutional rights, cleaving the health topography of the nation–suggesting a nation so bruised beyond recognition deep scars lay on access to public health care. So-called “trigger laws” in many “red” states would prohibit abortion if Roe v Wade is overturned, opening an entirely differnt national landscape of reproductive rights looks in an actual heartbeat–closed to judicial review.
Yet the mandates set the a to expand “heartbeat laws” on a national level–even if heartbeats are not beats, or in fact in evidence at six months, or signs of embryonic development or fetal life, substantially below currently guaranteed threshold of 22-24 weeks. Hopes were vested in Justice Alito as a savior for preserving local laws restricting abortion. In recent years, the anti-abortion Texas Right to Life promoted “Sanctuary Cities for the Unborn” movement, hoping a blossoming of local laws would rewrite national laws, asserting the “freedoms of the unborn” to promote “citizens arrests” of any facilitation of abortion after cardiac activity–that “detectable heartbeat”–irregardless of the mother’s condition or desire, or rights to privacy.
Texas Right to Life crafted skilled legal advice for implementing local restrictions against abortion growth in Texas created a geography of resistance built to withstand judicial review, even if continued constitutional rights to abortion for women still hold in theory across fifty states. “There is a place in the United States where [unborn] children with beating hearts are legally protected right now,” anti-abortion activists crowed, hoping to erode access to abortion further in the state. The day SB8 went into effect, on September 1, 2021, Governor Greg Abbot took to social media to affirm rights of the unborn–crafting ‘rights’ from whole cloth out of “heartbeats,” casting coercion to perform an ultrasound as form of protection,–even if the “heartbeat” hardly registered save as a squiggle in Abbott’s own tweet, far from a familiar sinus rhythm of cardiac contraction.
By identifying Justice Alito as a judicial savior, able to prevent an injunction on SB 8 and protecting what Texan legislators had defined as freedoms for the unborn, it seemed the state law would remain on the books. Alito gained the role as a custodian of American jurisprudence of state rights that the late Justice Antonin Scalia, no friend of abortion, who argued abortion was a state’s option, but that the United States Constitution neither “require[s] them to do so,” but that its permissibility is to be understood not as resting in the law, but by encouraging debates about and “voting on local state laws,” while long seeking five votes to strike down Roe v. Wade. He denied the precedent demanded any respect or judicial restrain, criminalizing removal and extraction of the fetus from the womb in no uncertain terms as a “method of killing a human child . . . that . . . evokes a shudder of revulsion”–even if “Dilation and Extraction” remains among the safest for the pregnant woman.
The fear of similar edicts, playing more on empathy to the unborn more than medical science or medicine, has already sent many fleeing state lines for better health care, and we have yet to gain compelling maps of the out-of-state flight or traffic beyond state boundaries to seek abortions, as we lack a better map of crossing state boundaries for seeking better health care for coronavirus infections in states where mandates for unmasking have elevated local case loads–or the flooding of urban clinics with requests for abortion procedures from those living in rural areas, already suggested in this national map. Yet in much of the nation, we can already see a curtailing of geographic access to abortion providers that has already changed the landscape of public health care–even as access to abortion seems relatively “safe” in the nation as a whole. How to read this map? It seems not a matter of reading the glass as half-empty or half-full, but an intent to restricting the legality of access to reproductive health.
The more logical distribution of abortion clinics north of the border will presumably soon be reflected south of it.
Right to Lifers’ optimistic confidence that “it all depends on Alito” was unwarranted: Alito summoned a divisive 5-4 split of extreme bitterness, overturning the hopes of the Chief Justice for judicial review, if hope may remain that one of the conservative justices will join the Chief Justice Roberts to give further scrutiny to so restrictive a law. We will probably lack anything like pro-choice legislation for some time in our deeply divided union. The Texas legislature’s passage of SB 8 criminalized abortion at a local level, but with eyes on the change of national law. For it generalizes a movement rooted in the creation of “local” ordinances in small towns, most all of which lack abortion providers but have a strong feeling that they also “really don’t want a business that murders innocent children,” as an East Texas pastor put it. The same pastor played a large part in proselytizing that small towns work to adopt similar ordinances since 2019, whose template was available online, as a way of preventing abortion within their jurisdictions, by delegating enforcement to local citizens, including disapproving relatives. The expansion of local enforcement of these laws contest a woman’s constitutional rights, but are agued to uphold the standards and moral purity of a city–and the legal advice that Texas Right to Life offered to frame local restrictions against abortion growth in Texas created a geography of resistance to the continued constitutional rights to abortion for women that still hold in theory across all fifty states. The promotion that “there is a place in the United States where [unborn] children with beating hearts are legally protected right now” has become a national call for eroding constitutional rights, by affirming rights of the unborn.
With Texas having long reduce funding to abortion providers that erode community health, SB 8 escalates the curtailment of health services on new logic of the law–under the pretense of medical objectivity–that spread among thirty-odd towns to declare themselves “sanctuary cities,” appropriating the term used by those cities that were attacked by Texas’ Attorney General Kenneth Paxton for their refusal to cooperate with federal immigration policies laws, and refusal to cooperate with federal immigration authorities. By denying validity of the Supreme Court to overturn the criminality of abortion by Texan law that defined murder as the death of “an unborn child at every stage of gestation from fertilization,” offering a legal stratagem to make “your town the next ‘Sanctuary City for the Unborn’ in Texas!” independent of constitutional law.
–as if the cities had the right to assert constitutional duties, terrifying residents about their own legal rights.
The “Heartbeat Act” classified abortion as a moral a wrong, but by recognizing the criminal act of terminating a fetal life of over six weeks of gestation–as if witnessing the mandated observation of a heartbeat qualified as a crime, and considering abortion a crime that opens all who “aid and abet” its practice, if a physician has already detected the heartbeat, as already mandated by Texas law. Linking the threshold at which a woman can receive a legal abortion to the time of the first ultrasound–about eight weeks, even if the heartbeat of the fetal pole can be sensed earlier, as early as five and a half weeks, this is the first time that the heartbeat can be mapped onto a visible fetal form by trans-vaginal ultrasound, and the heart beating at a rate of ninety to one hundred and ten beats a minute. Governor Greg Abbott of Texas, acting as if he was the state sheriff, proclaimed with the satisfaction of the convert that “every unborn child with a heartbeat will be protected” from September 1, 2021, asserting “no freedom is more precious than life itself,” as he relished reduced freedom of access to abortions if they clashed, as was apparent, from the protection due to the unborn beating heart of the unborn from “the ravages of abortion.” Abbot’s rousing social media post declaring Texas’ protection of fetal rights used the word heartbeat to register of “the steady and repetitive rhythmic contraction” or cardiac activity–
–but finished with an odd squiggle, as much as a sinus rhythm. The scientific argument was not as important as the rhetorical parsing of personhood, offering the assurance of registering a separate life by mapping onto a notion of personhood. The “cardiac activity” detected at six weeks might imply a life needing protection, but was just the “flickering of a portion of the fetal tissue that will become the heart,” as we are reminded by the American College of Obstetricians and Gynecologist, and more than indicative of a stage of fetal development, mapped onto an imaginary of personhood and maternal love, rather than modern medical understanding.
But the “Heartbeat Laws” enacted at some forty East Texas towns, and from Ohio to Kentucky to Texas, seem to take advantage of the gaps between expert medical knowledge and presuppositions of fetal health, able to incentivize the possibility of civil suits against not women seeking abortion, or abortion providers, but anyone assisting in the illegal activity of terminating the alleged “heartbeat” that is posited as an index of vitality. At all of six weeks, a heart has not actually formed in the fetus, but the signals registered on the ultrasound are impressive–and graphically demonstrable–as a life line of sorts that the woman bearing the fetus is forced to face, as if she were suppressing her emotional attachment to the fetus she is carrying, but might reconsider her plans or own health needs before a line registering the presence of some electrical activity approximating a sinus rhythm–or, as the lawyers who parsed the new law put it in tortured prose, “cardiac activity” that involved the “steady and repetitive rhythmic contraction of the fetal heart within the gestational sac”–not an actual heartbeat but a surrogate form of personhood.
If just over half of the women who sought abortions in the state did so after six weeks, the new Texas law would allow penalties to be assessed and collected against anyone who “aids and abets” the shifting goalposts that now define the “end” of a pregnancy, beyond a six-week timeframe, sanctioning all Texans to become both consider themselves experts in embryology and district attorneys as well. For by deputizing anyone to view their liberties as infringed, and file civil lawsuits against anyone who “aids or abets” an abortion, equally liable as the perpetrator, to situate the procedure in recognized language of criminal liability. Access to abortion is intwined in both a criminal and pseudo-medical contexts to be removed from a woman’s health or choice.
The index of the heartbeat in a recognizably human form is an odd proxy to deem abortion a crime, but a rhetorically powerful one for fetal personhood–as well as a dramatically retrograde legal criteria, and a means to deny women a constitutional right to which they are entitled. But it is politically powerful, as an early canon shot in the territory of the circumscription of access to abortion, and the sanctioning of what amounts to “bounty” to charge all who help any woman seek access to abortion past the six weeks threshold. The bill entitles citizens of Texas to bring suit against any deemed “abortion providers,” by imputing personhood to that heartbeat, or “cardiac activity,” allowing them to recover a minimum of $10,000–a guaranteed a payback of legal expenses irrespective of individual health or personal reasons, or the rights that women are constitutionally entitled. Based on the logic, tweeted by Governor Abbott with evident self-satisfaction, that “no freedom is more precious than life itself,” a weird inversion of the claim of the 1320 Declaration of Abroath refusing that Scottish lords will submit to English lordship, and that freedom is something “no honest man gives up but with life itself.” If the evocation of “freedom” is a slightly less antiquated but more terrifying polarity of “Live Free or Die,” the end is intended to terrify: the bounties offered on notification per potential abortion of $10,000 per unborn, the state legislators placed value placed on fetal life in the state by consensus as well as incentivizing apprehension.
If Texas was the state where the deputization of all state residents as vigilantes for all “aiding and abetting” abortion after the detection of that “cardiac activity”–a reduction of the established threshold of twenty weeks, now reduced by almost two thirds. The law treats the performance of an abortion past this set threshold as a criminal activity by alerting widespread vigilance against something contrary to the common good. Indeed, the “life-saving Heartbeat Act” that the legislative director of Texas “Right to Life” described is a legal maneuver designed to entrap those seeking to terminate a pregnancy past even six weeks, by the specter of loosening vigilantes to compel women seeking abortifacients to live in fear, depriving any sense of a constitutional right to access abortion. And the concerted strategy was to introduce a virtual onslaught of similar cases passed by states with republican legislatures, undermining the durability of Roe v. Wade and Planned Parenthood v. Casey, which prevented states from imposing “undue burden” on the right to abortion, by framing a mandate on those assisting in the abortion–not directly on those seeking it. The disconnect between the reduction of health care services and palpable sense of excitement of anticipatory groupthink at the possibility to “be the first state in the nation to successfully enforce a ban on abortions when the pre-born child’s heartbeat is detectable.”
The contradictions of implicating a form of medical judgement to enforce forced public compliance of the most reactionary ban on abortion in the nation’s history. (A parallel movement in Mississippi seeks to push the threshold to fifteen weeks, as arbitrary a benchmark, not pegged to cardiac activity but fetal movement that as a sign of personal agency.) The word “pre-born” not only imputes identity to the fetus and embryo, but rebuts the very language with which Roe v. Wade discussed the abortion of the “potential child,” categorically denying the category and dismissing the status of judges as “umpires” of abortion. If Jeff Sessions had elevated sports to the field of jurisprudence in appealing that the nation’s “legal system demands . . . a fair and unbiased umpire, who calls the game according to the existing rules and does so competently and honestly every day,” without allowing for his personal or political views, no doubt leading Brett Kavanaugh, now Supreme Court justice, to wax in The Judge as Umpire: Ten Principles, in what seems an audition for a Supreme Court nomination hearing, as well as amassing substantial debt purchasing season tickets to baseball games, of up to $200,000, by acting only as “a neutral and impartial arbiter who favors no litigant or policy.”
The figure of the judicial umpire, so dear to conservative jurisprudence, was oddly inverted, as Texas Right to Life appealed to the Supreme Court: the relief of replacing even the figure of the umpire, that figure of lack of bias, was welcome to be replaced with the medical surety of an ultrasound, and the objectivity of a measurement of that elusive criteria of fetal life, as cardiac activity offered a substitute for even the best attempt at impartiality of judging the creator’s work. With some clear relief, Stephen F. Mitchell told the court that they would be effectively released from the danger of the “abortion-umpiring business,” with evident sarcasm, that led it to create the fiction of rights to abortion. Rather than the judge acting as an umpire, albeit “fair and unbiased,” perhaps the divisiveness of the contested issue of abortion mandated a better index of fetal life, recognizable in the audible registration of cardiac activity, that ensured delegation or authority to prevent women from access to abortion in the first stage of a pregnancy. The quandary of determining fetal personhood should be removed from judges, and jurisprudence, in effect, and be rooted in the surety of local abortion laws.
While the law in Texas is local, it parallels laws mandating ultrasounds attempted in Virginia, and others states, the made the explication of the ultrasound to women seeking an abortion as a rite of passage to take stock of their termination of pregnancies. But the concept of such dramatically different local determination of how late abortion is permitted seeks to sever abortion from constitutional freedoms that has huge consequences for health care, and individual liberties. Local legislative bills have exploited a “states rights” rhetoric, with eery echoes of Secession, to curtail access to abortion or reproductive care. The cutting short of a twenty plus week window allowing abortion to the window at which state laws permit abortion eroded what is the “Law of the Land”–to a threshold shortened to below when a woman is even likely to realize she is indeed bearing a fetus, and reducing the ability of all women to seek abortion. the medicalized logic which SB8 presented to the public as its rationale for such a constriction of “rights” Texas residents possess to abortions is part of a strategic gambit whose long term aim is to undermine longstanding consensus about “settled law” since Roe v. Wade, adopting “weeks past fertilization” as the metric, rather than the viability of the fetus outside the womb, estimated at between twenty-four to twenty-eight weeks.
The desperate appeals to the Old Testament, rather than to an umpire, provided a likely analogy for adjudicating this Solomonic decision of the very beginning of life. The response demanded an appeal to religious precepts out of the authority of the Old Testament; perhaps desperation to find an authority able to be cited compelled some anti-abortion doctors to reach back to the Book of Esther, an archetype of the agency of a woman roused fears of a mass killing she cannot ignore that inspire her to righteous action. The biblical Esther animated 4,000 women to dedicate themselves to a public “call” to prayer in a moment of public antiabortion activism in 2012, petitioning for divine intervention to save the nation as the Supreme Court considered the constitutionality of the America Cares Act. Perhaps the premodern image of female agency petitioning for mercy was a model for placing divine guidance above the law, despite the distaste of adopting an analogy of a genocide of unborn–and deliverance from a threat that the unborn faced and the priority of divine guidance to civil law. Esther was the intercessor–a prototype of Mary–whose stratagem of back to a bad King (Xerxes) foiled the plot to kill her people. Perhaps the invocation of an Old Testament figure of intercession tempered the outrageous appropriation of the Holocaust of Unborn, but offered model of righteous action before the secular courts: Esther’s supplication was in 2019 presented to the U.S. Supreme court, ‘adapting’ Esther, 8:5-6 to beseech the Court lest “infants in the womb throughout America be destroyed” by abortion by reversing the guarantee of abortion in Roe v. Wade through the first twenty-two to twenty-for weeks of a woman’s pregnancy.
The figurative moment of following divine inspiration offered an archetypical truth-telling moment for female advocate for the unborn, masking the tastelessness of an allusion to a Genocide of unborn by a principled stance long popular among evangelical women. For Esther was the intercessor–a prototype of Mary–whose stratagem of back to a bad King (Xerxes) foiled the plot to kill her people.Concerned Women for America promote the figure of Esther as a model–“This is our Esther moment!”–invoking the intercessory role of Esther as a meeting with President Donald Trump–not the best messenger of a Christian message–to exercise “god-given influence.”
Esther seemed a way to shift from the secular to sacred register; Esther embodied the influence Christian women could wield in adverse conditions, a precedent for women’s leadership from in scripture, transcending traditional gender roles, when she was invoked by notorious antiabortion activist OB/GYN Byron Calhoun who explained his work as a maternal physician as following Esther’s path, by counseling patients against abortion, emulating her masquerade in a masquerade of medical responsibility as a high risk physician of neonatal care refusing to counsel abortion. The judge’s almost blasphemous citation of Esther as a scriptural archetype for his action–as if to complement Magdalene–seemed to legitimize the cultivation of False Witnesses by anti-choice doctors sought out suits able to undermine access to abortion, by falsely attesting to the range of complications from abortion, as if they were exercises of “truth-telling.” Claiming the legitimacy of Esther dignified Calhoun’s own role as a “false witness”–and in gathering “false witnesses” designed to an expansion of the policing of bodies by the state as a way to compile statements for cases intended to restrict access to abortion, including having observed a “remaining, degenerating ‘products of conception'” from one patient’s uterus in an emergency dilation, alleging he had “observed it in the ultrasound,” even if he identified terms used for placenta in alarmingly creationist ways.
Dr. Byron Calhoun of central West Virginia cited Esther as a model for an antiabortion policy advocating for the unborn, insisting that the woman’s life is never at risk in pregnancy. As the only local high-risk obstetrician in the rural area of central West Virginia presented himself as a “messenger of God” called to “fight for the lives of the unborn,” he was masquerading as a doctor, even while refusing to “play God” counseling abortions. He exploited his power over clients without access to nearby second opinions of specialists–
–to create a basis in which his practice became a pipeline for bringing suits that would restrict access to abortion. Calhoun indeed seems primed for the now-you-see-it-now-you-don’t aspect of fetal “heartbeats;” by the magic tricks of allegedly finding an undeveloped skull of a thirteen-week fetus in the ultrasound of a woman on whom he had performed an abortion to demand a process of dilation, creating a medical record ripe for legal case to restrict abortion rights. Was the use of the image of an ultrasound as a basis for bringing legal claims a precedent for the current focus on the heartbeat as an indicator of life?
The magical of conjuring a fetal skull was slick and sick at the same time. For the West Virginia doctor exploited his own monopoly on offering women advice about high-risk pregnancies, he was curtailing a national map of access to abortion further that has been reshaped around legal precedent on pseudo-legal grounds–often using allegations of offering better medical care to chip away at the legal window at which abortion can be provided in jurisdictions, and most often between states. The map of circumscribing abortion rights suggest that the crusade he led is hoped to eventually end up before the U.S. Supreme Court, however, hoping to rewrite the law that nominally keeps abortion legal in all fifty states. The gap in access mirrors the geography of red and blue state legislatures, radically restricting access to neonatal and maternal health care.
Although the issue has been foregrounded in an attempt to erode legal consensus, if not redraw the political landscape of the United States, as abortion emerges as a touch-button issue for local relation to federal law, is “cardiac activity” a true index of freedom, or of circumscribing constitutional rights?
It is far more easily seen as a loss. It is important to map the legal attempts to curtail abortion not only in a “states rights” optic that would be a frontal assault to current statistics on how many women of reproductive age who have sought abortions. A map, made roughly as the judicial solution was formulated for legislative restrictions on those seeking abortions, responded to the a contested terrain, viewed by women’s county of residence, that places Texas, Mississippi, and South and North Carolina as a contested battlegrounds of legislative attack–areas to seek a new Civil War, and where Republicans were in the legislative majority, to frame a law deemed likely to survive challenge.
Onto this topography of fear, an increasing number of states have sought to circumvent national law, with twenty-nine mandating a form of counseling before abortion, and nineteen banning outright abortions that involve dilation or fetal extraction, creating a legal morass for any woman seeking an abortion in many states, in a relatively recent whittling away of Roe, designed to substantively alter the meaning of the decision.
An earlier Texas state law designed to challenge the constitutionality of abortion providers in Texas in 2014 by shifting the geography of access to abortion during the Obama administration, before the specter of making abortion part of a national health insurance program. The expanded access to abortion shocked activists, who were determined to create new restrictions for how abortion was part of health care at a local level, using state law to restrict the expansion of medical services. But the result has shocked medical organizations by shifting the grounds of access to health care in a direction unlike the rest of the nation–curtailing the place of abortion in plans for expanding public health care. The current legal battle in Texas’ legislature passing of SB 8 returns to familiar grounds: in pernicious ways, it erases the framework for evaluating a woman’s decision to terminate pregnancy according as a constitutional protection, elevating the detection of the heartbeat above the principle of health care to interfere with what was long settled law. That attempt to institute a restrictive law, indeed, led to the passage of proactive laws from 2017-18 defending rights of abortion in the northeast, northwest, and Illionois, setting the stakes to a redrawing of the place of access to abortion on purely legal grounds.
By advocating the standard of the “heartbeat” as a basis to eliminate health care for pregnant women, it poses as a modern recognition of the start of life in the womb that uses the now standard coin of the sonography as a basis to register fetal health as a grounds for affirming a tie to fetal individuality, in ways that will only be destined to sharpen the stark medical divides long existing in the land. The increasingly existential relation to policies that allow access to abortion is so terrifying that Planned Parenthood has created a dashboard of abortion access in updated form, whose shift in local policies suggest a terrifying unequal scenario of access to abortion in the future–a future when the legalization of abortion in Mexico may well increase the specter of women’s travels across the southern border to find the access to abortion that their own states’ legislators have decided was in their interest to deny.
While the question of access to abortion threatens to be existential for many women in the United States to a degree that would turn back the clock on what had long been guaranteed to be the accepted “law of the land,” the increased space that was given to legislatures of individual states to determine access to what they have called the termination of pregnancy : the heartbeat has gained currency as the new symbol of the shifting of the grounds of debate, as the heartbeat serves to provide a semantic shift from abortion to “termination,” and the ending of what is now construed as “fetal life,” as the heartbeat first seen in the fetus at about eight weeks has provided the new threshold for allowing abortion in Texas–and perhaps soon in other states–a rhetorical shift in the logic of shifting the threshold from “viability”–the ability of the fetus to live outside of the womb–to the first registration of this totem of life in the womb. Although the fetal heartbeat is able to perceived in its lub-dub rhythm at just three weeks, when a tiny 40,000 cell embryonic heart works in synchrony with the mother’s heart, as if learning its rhythm, beating the vital rhythm that Goethe elevated to a macrocosmic vibration “an eternal movement of systole and diastole of the heartbeat, the inhalation and exhalation of the world in which we live, act, and exist.” Anti-abortion activists legislated that harmony at a remove from the world, in the womb.
The registration of the heartbeat is of course now captured by sonography, reflecting the emergence of the sonogram as a rite of passage of hospitalized childbirth. The battle in Texas returned to a more recent battlefield than 1973. Local law had tried to recast the “strict scrutiny” of protections on abortion mandated since Roe v Wade from “settled law.” In elevating heartbeats to the standard to “protect the unborn” seem to elevate scientific criteria over legal decisions, but hopes to extricate abortion from constitutional rights in deeply premodern ways. Texas’ Attorney General, Kenneth Paxton, grumbled that after an earlier Supreme Court had acted to overturn restrictions that the Texas Governor in 2013 imposed on access to abortion in the state, introduced in 2013 by then-Governor Rick Perry, that “The court is become a default medical board for the nation, with no deference to state law,” as if Texas legislature were a better tribunal–or as if the hospital could be a tribunal of judging the termination of pregnancy.
Since 2013, a sonogram was a mandatory right of passage that all women seeking abortion within twenty-four hours of an abortion, forced to watch images of the fetus and hear the heartbeat of the unborn after they have elected to have an abortion–as if the moment of confrontation with the unborn demanded to be mandated by the state. The sonography that was mandated by state law was tantamount to a form of state surveillance, and that the “Heartbeat Bill” sought to exploit. If the mandated sonogram in Texas already arrogated to the state the introspective clearing of conscience that medical science would not necessitate, inserting the code of ethics in danger of being absent from the relation of a woman and her doctor, by the logic that a “states rights” argument for securing local liberties and ethics must trump public health needs–even in a state where public health care for women is notoriously low, and the hospitals–already prompting a rise in abortion refugees to flee the state and their health care plans, seeking constitutionally mandated access to abortion that exists (for now) in Oklahoma, Louisiana, New Mexico, Colorado, and Kansas as they race to find the stipulations and restrictions that exist in neighboring states, leading telephone lines to be ringing around the clock for care. As some 85% of women seeking abortions are being turned away from clinics in Texas, Planned Parenthood Great Plains has noted a sharp rise of patients arriving for care from Texas in Oklahoma, seeking access to a constitutionally protected right, before the Oklahoma legislature’s new abortion restrictions kick into effect on November 1.
Perhaps the legal reconfiguration of access to abortion can be seen as a response to the affirmation of abortion rights by legislatures of some states, already fearing the shifts in landscape of access to abortion. Proactive abortion laws were passed in Massachusetts in 2018, in Illinois in 2017, and bills passed or were pending state legislatures in California, Washington, Oregon, New York, New Hampshire, Maine, New Jersey and Rhode Island. The call for augmenting states’ ability to restrict women’s access to abortion however seems to have been revitalized in ways that energized anti-abortion activists, newly eager to curtail women’s access to abortion–or the endangerment of “unborn lives”–across the nation. The “human rights” argument placed a premium on the rights of individuals who do not yet exist–“unborn lives”–was an argument of potentialities and possible futures, but was compelling not only as a matter of faith. The new consensus about a “heartbeat bill” that is being shaped in Texas is not already spreading to other states from Mississippi to Georgia seeks to revise the failure of positing limits on access to abortion in 2013, when restrictions were last blocked by the Supreme Court, but to do so with an eye to reshape national consensus about public health, waging a steady war to dismante how constitutional rights have defined federal policy one state at a time.
The introduction of the mandatory sonogram ten years ago in Texas, intended to force the pregnant mother who has concluded she wants an abortion to listen to the heartbeat of the fetus she seeks to terminate, provided a foundation for the enactment of the “heartbeat” law. But the law makes the mandatory sonogram a compulsory surveillance of her uterus–although if, and only if, the fetus indeed has an irreversible medical condition, the woman carrying it need not hear described the results of what the sonogram revealed. The function of the sonogram was not diagnostic of fetal health, in other words, bu would exist solely to saddle the mother’s conscience, as if she has not taken responsibility for the unborn she carrying, or “to promote informed consent” after listening to the hearbeat registered by a transvaginal probe, used to get the best “look” at the fetus possible.
1. While the “heartbeat” law pushed back the threshold of rights of women to have abortion from “viability”–the standard of Roe v Wade, when the unborn child was able to live outside the womb, to what was represented as if it were based on scientific criteria–the first registration of the heartbeat–the law was presented in time for the new configuration of the Supreme Court, along the template for drafting model legislation apparently impervious to law suits and litigation, drafted by Faith2Action, a national network of “pro-family organizations” eager to seize the chance to redraw the map of health care in America. Although several federal judges have blocked restricting abortion to a time when most women do not register pregnancy, the call to acknowledge the heartbeat as a criteria of personhood of a fetus promoted by Faith2Action as a compelling basis for generating public support for their bill, using the now universal registration of the sonogram that offers the basis to detect the heartbeat’s detection in hospital clinics, use what seem objective and scientific criteria to advocate prescriptive laws that are far more premodern–and authoritarian–than the constitutional grounds abortion was construed fifity years ago, when Roe v. Wade set criteria of “viabiility”–the ability of the fetus to sustain vital functions outside the womb–as a commanding parameter of abortion in 1973.
The fetishization of the heartbeat–a sign of empathy, and a human relation to the unborn–was less important than the likelihood that the new constitution of the Supreme Court would respect the decision of states as having “compelling interest” in framing a law that circumscribed access to abortion in their own jurisdictions. After the laws were blocked in Georgia and Mississippi, introduced failed bills in Ohio in 2011 and in North Dakota and Arkansas in 2013, and Iowa in 2018–a rage encouraged by the shifting composition of the Supreme Court, but seeking to erode “established” consensus since Roe v. Wade. By reducing women’s access to abortion one state at a time, conservatives holding majorities in local legislature have eagerly responded to the new cast of the Supreme Court, strong-arming the nation to disregard the “undue burden” of restricted access to abortion. As if to disguise questionable lines of legal reasoning, the new ‘legal thresholds’ “heartbeat” bills propose from six weeks to eight weeks suggest false scientific standards: they amplify the compelling nature of an argument without compelling reasons to withhold health services to pregnant women.
The conjuring of a foregrounded image of the “heartbeat” is indeed far less a scientific standard for redefining what term or trimester pregnancy be terminated. Yet it is a rhetorically persuasive as an icon able to be repurposed. Indeed, the detection of a “heartbeat” may seem to propose one, as it is able to shift from scientific to popular registers, and act as a powerful rhetorical re-framing of the personal bonds of attachment to fetal personhood that is deeply popular among anti-abortion activists seeking to reduce access to abortion in the name of the “human rights” of the unborn fetus.
The case is demands not to be seen as about heartbeats, of course, but a curtailment of a health care. As we focus with outrage on the actuality of Texas, self-defined “Heartbeat” bills have passed at least one house of the state legislatures in Georgia, Missouri, Ohio and Tennessee, introduced to legislatures in fifteen states, including Florida, Illinois, Maryland, Minnesota, New York, South Carolina, Texas, and West Virginia, and become law in two states—Kentucky and Mississippi—although a federal judge has temporarily blocked the Kentucky law from taking effect. To understand the scale of effort, and the tactical strategy claiming fetal personhood can be seen as staking national division, designed to upset consensus and overturn legal precedent. The two tracks of rhetorical and legal reconstrual of anti-abortion struggle, playing both to a popular theater and legal opinion, must be appreciated. If often blocked by courts, signing restrictions into law suggests a mandating of constraints to abortion, mapped by a “classic red heat” emoji as if to affirm enduring love for the unborn–or ability to attempt to legislate the primacy of that allegation of love.
If geographical distribution of abortion providers dramatically differ, attempts to further restrict such access in Texas, a state notable for sharp discrepancies–more than Mississippi, Missouri, Idaho or Nevada–in apparent discontinuities between two worlds–have led to enshrine limits in local law for abortion beyond the first term, or performed by anyone but a doctor with admitting privileges. Given that many doctors in the southern states are not trained in childbirth or abortion, the restrictions placed on clinics would have been severe. But the battle has been re-fought and re-litigated in 2021, before a more sympathetic Supreme Court and in a legally quite inventive way, seeking to create Texas as a new paradigm for how local law and states’ rights can trump legal precedent across the land in ways federal courts could not pronounce or so easily reverse. S.B. 8, the Texas “Heartbeat Law,” is a redux that was long planned and in the making, rolled out by the former Austin District Attorney, who had long wrestled with making a law that might be suitably hard to challenge in the courts, so long as the justices accepted and were sympathetic to a states’ rights argument–more than a question of posing an undue burden.
In ways that undermined the attempts to expand access women’s access to health care and benefits, a local game of defense was played, despite the restriction of federal funds for abortion since 1977, forcing closure of medical marketplaces for what many states deemed a threat of expanding coverage of abortion in medical plans by the America Cares Act–even if the ACA prohibited including abortion within health benefits, and prohibiting marketplaces from “discriminating” against providers that are unwilling to provide abortions. But the most severe restrictions on abortion ever imaginable were posed in the so-called “Heartbeat Bill”–what news agencies have been trying as hard as possible to refer to as Senate Bill 8. And identifying a heartbeat as the definitive sign of vitality was not only rebranding, but a legal maneuver to allow “Pro-Life” to undo Roe v. Wade, direct from the Lone Star State. Although it is not until the eighth week of pregnancy in humans that the major organs have formed in the two inch fetus–about half of its destined mass–as its organs develop until it is able to be “brought forth” by birth, as the name “fetus” implies, long before readied o be “brought forth” the threshold of the heartbeat was adopted as a standard, if one particularly preposterous and authoritarian, as if with medical or scientific grounds, with the apparently intentionally creating chaos in the health care system and in standards of individual medical care.
As SB 8 went into effect, and the Supreme Court appeared silently awaited the prospect of expanding a vigilante movement to apprehend migrants deemed illegal, Right to Life organizations were thrilled that the decision seemed to lie in the hands of the most reliably conservative member of the Supreme Court. Alito had indeed argued the case for “undue burden” of public safety curbs in a pandemic: he believes “restrictions [on public assembly] so severe” to prevent the spread of COVID-19 posed constitutional issues as “curbs on individual liberty” and could mean the end of Easter worship services or the closure of synagogues on Yom Kippur–fearing “religious liberty is fast becoming a disfavored right.” But he was hardly sympathetic to the idea of liberty to terminate pregnancy over his career. He rarely said this explicitly. But it was not without reason Alito became the hero among those spearheading Birther attacks on Barack Obama, breaching deference by mouthing “not true,” or “simply not true,” at a State of the Union-as if to rebuke the President from higher legal grounds. True to a self-image of incarnating moral virtues, Scalia reacted reflexively to Obama chastisement of having “reversed a century of law” in 2010, prompting to pushback against the chief executive to defend a verdict he had defended before the Federalist club, arguing to a friendly audience that the 2010 Citizens United releasing limits on campaign gifts of corporations and unions did not break from precedent, but expanded free speech rights. Alito enjoyed such grandstanding by rebuffing that the decision “reversed a century of law–standing up to a chief executive to preserve standards and values. His defense of anti-abortion laws as “religious liberties” and freedoms, however, is central to his jurisprudence and moral reading of the law and legal tradition.
There is a sense of learned blindness to the geography of health needs in the United States, however, that has been invited by the intensity of these strict commitments to liberties and freedoms. More than half of the women between 15 and 44 years of age live within fifteen miles of clinics where they could have access to abortions, as of 2014, suggesting a picture much more stable in terms of access to abortion than the activists would like to see–as reflects a stark division between rural communities and urban centers, to be sure.
But the country might be best seen as divided by some twenty-seven “abortion deserts” where residents of cities of over 50,000 have to drive over a hundred miles to obtain an abortion–and at times over three hundred miles, as for residents of Rapid City, SD. The map makes one angry–and needs to be seen for what it is–“abortion deserts,” for sure, but deserts of health care–and demand to be read as an intensification of lack of access to health care in those areas of the United States where the quality of health care is lowest–Texas, Mississippi, Arkansas, Oklahoma, Wyoming, Indiana, and New Mexico, as well as Kentucky and Louisiana. Are these states where the curtailing access to abortion is truly in the commanding interest of the state? As Governor Rick Perry of Texas happily refused federal funds for the states’ Medicaid Women’s Health Program to prevent any funds being accessed by Planned Parenthood, the curtailing of access to clinics offering the possibility of abortion that forced clinics to close in 2012 was a health care disaster, now seeking to be expanded ten years later by subtracting the state from national consensus on constitutional rights.
Where is the place for reproductive rights in this map? While cast in terms of medical “personhood” the landscape suggests a deep division of access to health care. For while filtered through the division of red states v. blue states, but the ability of “red state” legislatures to enact laws to define abortion–or “fetal personhood”–as an issue of states rights, the effects on health-care are not only regressive, but would return to a two-tier status of women’s access to health care from which the whole nation will suffer. Federalist Society members have readily extended individual freedoms to the unborn–a logical leap that is hard to really cast as constitutional foundationalism–alarming for its echoes of early modern understandings of pregnancy and birth. Members of the Federalist Society are committed to values not only of fiscal responsibility, individual liberty, but constitutionally limited government rather than redress, and a defense of freedoms and individual liberties that are grounded in the defense of the foundational document of the nation, even if that foundational document says little on abortion, or, for that matter, of women and women’s health: health care is a free market, able to be freely constructed by the states, without muddying the waters through government oversight.
Proximity to clinics not only maps nicely onto a red-blue color ramp; the search for anti-choice ideology is evident in Trump’s early promise to fill Antonin Scalia’s seat on the Supreme Court with someone able to overturn constitutional protections of the right to terminate pregnancy, a platform dear to Federalist Society members. The recall something like small tears within a red map seeking to impose greater limits of access to abortion, and a legal landscape from before 1973, and to overturn the mandate in the Affordable Care Act that low-income women be allowed access to abortion on constitutional grounds. The alarming fit to ideological or “political” divides is clear as it seeks to rig the electoral map around a divide on women’s rights to abortion, independent from health needs of actual women seeking reproductive care: the chiasmus is a sharp split in medical markets, provoked by an infuriating divide in how local communities interpret or have interpreted constitutional rights–the red cannot here but inspire anger. And one may well marvel at the sharp contrast between bursts of blue in select Texan cities amidst a defiant surrounding sea of red, and one’s anger grows at reflection that those star-like explosions of proximities to facilities/clinics are now in danger of extinction, even if once beacons of hope in areas of deeply compromised access to health care on the eve of the introduction of health insurance exchanges circa 2015.
There is a deep partisan tinge to the curtailment of health care that is rooted in a sense of local “freedoms” and an extension of rights that is oddly premodern–or early modern–in the extension of personhood to the unborn fetus. The trust that an Italian-American tradition of jurisprudence descending from Antonin Scalia might preserve moral standards by allowing the state law to go into effect without challenges; the clear hope to incite other states to adopt similar measures by encouraging citizens arrests of those in any way “abetting” abortion but seemed a strain of jurisprudence worthy of Justice Scalia, that bastion of conservative thought whose former clerk devised an anti-abortion bill more impervious to court challenge, removed from a right of a woman to privacy to states rights. Justice Alito appeared the perfect authority to preclude the challenge to S.B. 8, and to allow the regressive state laws limiting access to abortion to expand, and offer a model now awaited to spread to other Republican state legislatures, in a sort of states’ rights revolt around abortion rights.
The ground-game was long in the planning in movements like RedMap, but control of both chambers makes it an almost inevitable opportunity to Right to Lifers to legislate an end of abortion as we know it on a local level.
2. Justice Alito has almost cultivated a fraught relation to the very history of Roe v. Wade, the precedent affirming women’s constitutional rights to abortion before the fetus gained “viability” of survival outside its mother’s womb. Alito refrained from criticizing from the bench what he called “settled law,” recognized only that it demanded respect from jurists, in his confirmation to the court. He was seen as the perfect justice to petition having opined, as a Justice Dept. lawyer in the Reagan Presidency, that in any consideration of abortion rights the President “should make clear that we disagree with Roe v. Wade,” and that in his opinion, “the Constitution does not protect a right to an abortion,” and was probably only prouder of his opposition to racial and ethnic quotas, a source of “great personal satisfaction” and pride that also led him to be promoted to Deputy Assistant Attorney General in 1985 as a proud defender of “protecting traditional values.” The very legitimacy that he gave to government’s role in “protecting traditional values” and seemed sympathetic to how Byron White vigorously dissented from the verdict on Roe v. Wade by calling its affirmation of a woman’s right to privacy an “extravagant use of judicial power”–questioning why it was an “undue burden” to ask women before receiving an abortion to notify husbands, in search of the thumbs up, at the same time as he indicated reluctance to overturn what he allowed generously was the “law of the land.” What qualifies as “undue burden” on a right is however at the heart of Planned Parenthood v Casey, and the notion that SB 8 would not create an undue burden is truly more than preposterous, but it has tried to reframe the issue and its optics as one of states’ rights.
But Alito preferred mouthing the accusation of falsehood concealed a legalistic parsing of the difference between direct contributions to campaigns, verses to Political Action Committees, and the consensus Alito created with other justices about a law expanding the liberties of of citizens to arrest those seeking to terminate pregnancies after a given benchmark subsumed the privacy of a woman’s relation to their doctor as a broader question of public good–in ways that stand to redefine what we mean as public health care, in a state where abortion services were not banned from being covered in the health insurance marketplaces. The hope of reconfiguring the issue of abortion rights on a state-law level to erode the question of its constitutionality by the logic of states’ rights by using the states’ medical marketplaces to remove abortion from individual medical marketplaces, which effectively removed the issue of access to abortion from national law, casting it in terms of state marketplace restrictions–
–or the exclusion of abortion coverage from those private insurance plans that were on offer, either by bans on its inclusion in private plans or bans on its inclusion in plans of a public health insurance marketplace. The effect was to target those dependent on public insurance for a procedure of abortion, but created a powerful torque to unman the intent of a federal law to offer access to health care by redefining what “health care” included, removing abortion from “health care” and defining it as a deeper and more essential violation of the pubic safety and the public good.
The staunchest “values” conservative, Samuel Y. Alito, was the perfect medium for the “Heartbeat Bill”‘s defense, able to open the logic of the law to the American political landscape in a no holds barred manner, and appearing to removing all challenges to local laws from the very question of federal oversight. In the end, of course, Justice Alito was not called upon to act alone; he was able to fashion a consensus of sorts, as abortion rights activists and Right to Lifers awaited a Court opinion, for a 5-4 decision. The so-called “Heartbeat Bill” appeared tailor-made for conservatives, declaring in more than slightly tortured logic the liberty of a state to criminalize anyone assisting, advising, or performing an abortion by the criteria of criminality on a fetus beyond the slenderest of margins–six weeks–a logic that affirms the “personhood” of the six-week fetus in need of protection from organized medicine.
3. While the fiction of the human sentience of a fetal heartbeat is an odd index of life, the associations of the heart with the soul, and human spirit, run deep. the logic of the recent decision to grant the status of the performance or assistance in an abortion after a window of six weeks into term–a window so small only some women may even detect the pregnancy–raises not only epistemic challenges, but elevates the abortion to the status of a citizen’s arrest, a concept akin to vigilantism, but a pillar of Texas’ criminal code that effectively allows the state to step outside federal law. The very fact that Texas courts apply identical rules to arrests by private citizens as to law enforcement officers for reacting to a “breach of the peace” may have planted the seed for pursuing the option of a citizen’s arrest for assisting or performing an abortion shifted the line of debate from Roe v. Wade in 2021, months before the Supreme Court plans to rule on the constitutionality of banning most abortions beyond fifteen weeks, preempting the ruling on a local level, Texas-style, around the index of the fetal heartbeat’s registration in the ultrasound of a developing baby–even if the heartbeat may not emerge in unborn fetus until over six weeks.
The “six week” period before which an abortion can be seen as a “breach of peace” by Texas law is difficult to challenge. But the six week criteria is hardly scientific–if it claims to be grounded in child development and modern medical instrumentation–but in the social presentation of the images of ultrasounds that have become part of the modern rite of a medically supervised childbirth–a “first image” of the unborn. Anatomists from the 1490s studied intensively the formation of the human fetus, studying the forms of the fetus as so difficult to study lest they dissolve they must be observed in cold water, taking care to peel apart the layers of the unformed body–“aborto” is literally unformed or “brought forth prematurely [into the world].”
But the slightly perverse reading of the ultrasound, an image of what appears early identity, present in the electrical charges whose alternation in the heart’s chambers have already begun to allow blood to circulate in its limbs, so it might gain the benefits of nutrition. While this heartbeat is not the reflection of a pulmonary circulation that defines life in the child, or could be cast as the early sign of some readiness to go forth into the world, it seems to cast the fetus as ready to leave the body with autonomy. There is some sense in which the claims of fetal autonomy and the preservation of life is in fact more early modern, or premodern in their scanning for the seats and signs of vitality in the unborn, rather than modern at all, choosing thresholds of the ability to smile (look it up, twelve weeks!) or the first hearbeat (eighteen days), that suggest the pitfalls of defining “viability” as a threshold, but also the cross-fertilization of knowledge for all via Wikipedia-like politicized Wikis, fueling the fervor of injunctions to pray. For all the legal gymnastics of the parsing of abortion by states rights, what passes as scientific insight as to the standards of life far more early modern in their attempt to define a threshold at which life must be respected and celebrated, or demands respect among all citizens to render the assistance with abortion a criminal act and civil crime. The visuals on billboards focussed on the identity of the infant (or Christ child) and the fetus, the infant substituted for the fetus as, in essence, the plaintiff whose ostensible ‘rights’ pro-life anti-abortion groups claim to represent.
The suggestion of a “human rights” argument for the unborn increasingly evoked premodern indices of vitality, based on days or weeks or going full-fledged Aristotelian in its emphasis on conception, by legitimating the image of the unborn baby as equivalent to the living one, and indeed finding signs of that vitality–a smile; genetic profile; the heartbeat–as the determining nature of life. The strategy had roots in Ronald Reagan’s presidential campaign, when Reagan embraced how televangelists had swapped out the clinical-sounding term fetus that lacked identity in favor of the emotionally cathecting term baby. Emotional ties to the unborn sought to generate a groundswell of support in public opinion; the legal structure of a states rights argument provided the framework by which the case would be in its end pursued, however, by construing an argument that had seemed to become only about states rights–notwithstanding that the paradigmatic case of which may be enslavement–rather than constitutional rights.
Could the movement of slaves north separate them from their masters? The Fugitive Slave law of 1850 that was widely debated, and contested by abolitionists, authorizing the government to compel the return of those once enslaved to their masters, was the conclusion of sequential acts affirmed by Congress from 1793, a set of compromises effectively seeking to preserve the union by compromising liberties, and indeed was an inheritance of colonial America–but only the Fugitive Slave Act of 1850 fixed civil penalties on those interfering with the capture of enslaved for the first time across the nation: the absence of rights accorded those once enslaved was most important as a verdict to preserve the nation, as if the enslaved were able to take a big hit for the nation.
The rich dossier of historical images of the unborn in earlier times in the abortion wars fought in Sweden culminated in the proposal Swedish photographer and photojournalist, Lennart Nilsson, brought to editors of Life illustrated magazine with the project of detailed photographs of the stages of fetal development or “human” life when he visited New York City in 1964. Although Life editors were unable “not to express skepticism about his chances of success,” this was lost on Nilsson, or perhaps invigorated his dedication to the results of the images he gained by tools of the German company Karl Storz and Jungners Optiska of Sweden, fitting optical endoscopic tubes with macro lenses and wide-angled optics for far views that continued to fascinate Nilsson, far more detailed and aestheticized than even he had been able to imagine, as he clicked hundreds of black-and-white and color photographs. Nilsson dedicated seven years to producing the set of asetheticized photographs of the unborn by which he became increasingly amazed, claiming to be entranced by their form and window on life.
Working in concert with the head of the women’s clinic in a Stockholm’s Sabbatsberg hospital, Professor Axel Ingelman-Sundberg, Nilsson was in fact a practiced photojournalist when he arrived in New York, to propose expanding his images of embryos by obtaining funding for endoscopic photographs within the womb: the project two years before the first ultrasound in Glasgow. The April 1965 publication in Life of The Drama of Life Before Birth became the fastest-selling ever of the periodical, bearing the traces of his commitment to anti-abortion images, even if he later refrained from political positions; the images showcased modern technology seemed the compelling image of the century, before the “blue marble” photographs of earth of 1972 credited by NASA to Apollo 17, to which they are oddly comparable: haunting 2001 in 1968, Nilsson’s eery images breached the limits of space-travel, and their title gave images of the unborn a logic tha translated to anti-abortion protesters as apparent confirmation of “life before birth” that invested individuality in the figure in an amniotic sac in which it floats, entire and apparently healthy. These images appeared high-tech, but were, as Karen Newman has shown, early modern in their celebration of fetal identity, independent from current scientific practices. But the images arrived in time for an amplification of the visual arsenal of abortion wars in America, attacking the verdict of Roe.
Lennart’s elegantly poised fetal photographs invest an oddly delicate independence in the figure of the unborn. Suspended in the amniotic sac, as if in the haze of unborn consciousness, placenta pushed off to the side by endoscopic probe, the figure of the unborn possessed a serenity and peacefulness and is magnified as a form commanding contemplation by the apparently cosmic setting of being suspended against a black void. The fetus is imagined as an isolated figure, clenched fists belie its fragility and inability to defend its growing self, its layout suggesting an intimate relation to the unborn, more graphic and more dramatic than any earlier images of human embryos, oddly possessed of a consciousness that the observer feels commands respect.
Did Nilsson’s earlier involvement with gynecologists who were pointedly questioning the politics of abortion lead him to foreground the new use that photographic images could have to communicate such emotional attachment to the unborn? Did Nilsson approach Life to gain the needed funds for a photo-spread of “unprecedented photographic feat” documenting the formation of the human embryo for a broader audience for pointed results? Did the very title of the magazine–Life-seem to make it the perfect foil to foreground a portfolio of such graphically disturbing images? The professional prejudice of gynecologists and obstetricians against abortion had led many at Stockholm’s Sabbatsberg clinic to cast abortions as a “danger to the nation” in 1949, whose physicians were often hostile to social welfare officers, and the Swedish Medical Association resisted compelling doctors to perform abortions in violation of their ethics in 1952, Jülich found, the very year Nilsson first reported on the controversial views of the Sabbatsbert clinic’s head: the successful project led to the increased popularity of his photographs of embryological specimens, and it was at the clinic that Nilsson published his first photos of embryos, placed beside the rather pointed question, “Why Must the Fetus be Killed?”
Although the Swedish photojournalist came to deny requests to reproduce his work from anti-abortionists, claiming to have been so offended at the use in anti-abortion rallies of crude reproductions of his photographs during the 1980s, that he and his daughter, who administers his estate, have refused consent for reproductions, despite requests from anti-abortion activists. Perhaps anti-abortion activists were attracted by detecting like logic in the title of the color and black-and-white image that appeared in Life—The Drama of Life Before Birth–that made the issue sell out quickly. Perhaps Nilsson’s clear awe and veneration of conception wasn’t explicitly tied to the political implications of personhood. But these were images of public use, akin to his later images of SARS; he published his own volume of images, A Child is Born, as photographs with a telos, not consciously investing the fetus individuality, but suggesting a drama that could be punctured or cut short in terms the viewer would feel contrary to natural law.
But if Nilsson claimed to be disgusted by the investment of his photos with political meaning, after seeing how bad reproductions of his aestheticized photographs adopted by anti-abortion protestors in the 1980s in London, Nilsson refused republication requests until his death, after abortion had in the 1980s become in Sweden the decision of the woman alone, and even in 1974 was granted until the beginning of the second trimester, or end of the eighteenth week of pregnancy, the telling title of the original Nilsson probably wished little or no agenda in the images, he did not want associated with a political stance; the skill of mounting his Hasselblad camera on endoscopes from 1958 to 1965 were marketed as instructional tools as much as aesthetic wonders of photography, leading to global fame. Yet the power even of reproductions of Nilsson’s unadorned and apparently scientific images continued to provide powerful polemic evidence of fetal life.
But their enduring appeal to anti-abortion activists as images of fetal individuality seemed to map the presence of individuality in the unborn that if they may left the Swede shocked, also offered modern poster child of a long early modern prehistory of imaging the unborn provided prejudices. Lennart’s technically modern work, if it was itself a confirmation of the increased technologization of embryology and pregnancy that led to the the 1950s in Glasgow, parallels the registration of modernity in the logic of the “heartbeat” law claims to use modern technologies to assert that at base little has changed in the stakes of abortion as a challenging fetal integrity, or, in legal terms, rights.
The attribution of compelling relation of the observer to the unborn fetus–before American tele-evangelists and the emergence of images of the unborn redrew lines of debate after Roe v. Wade. Was Nilsson already practiced in the dynamically provocative relation of images to texts, a decade before approaching the editors of Life?The logic of fetal personhood is nowhere more present than in the extremely popular photographs of fetal development, shot with endoscopic tubes and unprecedented access to examining rooms in Stockholm’s clinics during the 1960s, and indeed trust that Nilsson had developed to clinics and gynecologists from the 1950s. As a photographer who had worked for several Swedish photographic magazines, modeled after Look and Life, Nilsson had used access to examination rooms and pregnancy clinics at Sabbatsberg Hospital from the early 1950s, producing many of the early photographs of the human fetus that were used widely for “educational” ends as well as gaining popularity, at a slightly later date, on placards within the anti-abortion movement, for openly “political” ends that Nilsson claimed he wanted to separate his work: yet as Solveg Jülich has documented, the images of Nilsson’s work that later were published in Life in 1964 emerged from the “abortion wars” that were fought in Stockholm, after he was sent on a photographic assignment to the clinics that led to photographs of preserved anatomical specimens, kindling a fascination with photographing preserved human embryos that led to the later proposal for the 1965 photospread, “The Drama of Life Before Birth.”
If the 1964 proposal took the magazine’s editors by surprise, Nilsson’s 1965 series of images provided the fastest-selling issue of the magazine, whose logic–imagining a “drama” of “life before birth,” in ways that resonated with anti-abortion debates about personhood, Jülich revealed, the product of Nilsson’s heroization of gynecologists who had taken firm positions in the anti-abortion wars. While the images were identified for their educational role in progressive sexual politics and early sex education, publication of these images in Life and later in his own book offered low-hanging fruit anti-abortion activists who needed to ramp up visual propaganda to identify life in the womb after the 1973 decision led to the amping up of protests seeking to deny women’s increased access to abortion before the “viability” of a fetus. That the “objectivity” of Nilsson’s photographs
The recent legal elevation of the heartbeat’s clinical registration as a criteria as one of criminality–more than humanity–both registers the increased technologization of reproduction and the representation of “life” in the twentieth century but only to distinguish the fetus’ individuality from the mother who carries it to term–as Newman has argued–to deny any essential difference at stake in understanding of human generation. The historical embryological imaginary of the premodern era had cast the notion of what literary critic Karen Newman identified of “fetal politics” as rooted in a “core schema” of locating life in fetal “personhood” that inform and underly the possibility to prosecute all assisting in performing an abortion for assisting a civil crime. They echo the core of the logic of an anti-abortion activist: “The debate about abortion is one about personhood.” The elevation of the heartbeat measured by ultrasounds as a “signature of life” to a designator of fetal personhood appeared a new frontier in the enlistment of scientific technologies as a grounds for opposing abortion. The inconceivability of pregnancy without a sonogram, now common rite of passage of childbirth, may appear modern in its selection of the heartbeat, but was as early modern as it was modern.
The focus on the heartbeat extended the logic by which Renaissance medical engravings defined fetal personhood in the image of pregnancy–and used the image of the unborn to share knowledge among both medical specialists and the public in ways that elevated the rationality of perceiving life within the womb before birth that is recurrent in Renaissance medical illustrations all too often assimilated to a “rationalization” of knowledge. Even if not much was know about how the fetus evolved in the womb, drawings and engravings perpetuated an image of fetal personhood within pregnant bodies, as if fully independent from the mothers body and able to be easily dissected and removed from the mother’s health or from the womb, but as a healthy individual encased in layers of the placenta. As the sonogram has defined fetal personhood within the pregnant body, separate from the mother’s identity, in the pulsed sonography, or ultrasound diagnosis, as real time imaging and transvaginal sonography grew as fields of registration central to the registration of pregnancy, these icons of clinical obstetrics and gynecology, they have been hijacked as symbols for the anti-abortion movement, as if the images were able to offer compelling grounds of sufficient “reason” to translate into rather diabolic claims for truth and power. Yet it was as early modern than it was modern in its focus on the heart.
The search for early indices of life was, after all, an early modern pursuit of anatomists who were living in a very, very different society from today. The late fifteenth-century Veronese physician Gabriele Zerbi noted with some level of curiosity that suggests comparative anatomy that the size of such “prematurely brought forth” fetuses which one must take care to separate to observe was at forty days the size of an ant; possessing human features that could already be recognized, it had oversized genitals and eyes, but lacked recognizable human form until ninety days, but he claimed he could already provoke what we would call nervous reactions–flinching and movement of the limbs in the males, which were far quicker to form–with prodding, as if they had some sort of identity, even if we might call this an involuntary reflex–following Hippocratic beliefs that the precocious formation of male bodies reflected their greater heat; Zerbi followed medical dogma that the immortal soul entered unborn as they acquired a recognizable form, around thirteen weeks, rather than Aristotle’s conviction souls began at conception: SB 8 splits the difference, using the threshold of registering a heartbeat in ultrasounds at six weeks, as if our more modern technology of observation enabled us to determine the threshold of human life. The heartbeat was only first detected by sonogram screened for medical anomalies or fetal health only in 1956, described in the first article to include ultrasound images of 1958, advocating ultrasound as a diagnostic tool that would lead, rather incredibly, to an increasingly routine monitoring of pregnancy by the 1970s. The constitution of “rights” for the unborn fetus that can be understood in terms of “personhood” depend on the blurring of differences between the unborn and the born, or a division of “viability” of survival, that SB 8 pushes back to the six-week heartbeat threshold, as a way of imposing human knowledge on the circumscription of a pregnant woman’s–or any woman’s–rights.
4. The premodern nature of this logic survived in the anatomical images of the unborn–and the privileged place of the fetus in anatomical images–that impute a core sense of individuality to the urborn. The esteemed Veronese physician who prided himself in the benefits of an exhaustive study of human anatomy, presenting an account of the emergence of human life in terms considered modern for the 1490s, and wrote up the results before 1503: the dissection of a miscarriage that led Dutchman Volcher Coiter, who had studied with the great anatomists of his day–Falloppio, Eustachi, and the naturalist and early comparative anatomist Aldrovandi to claim to have dissected a fetus forty-one days old, when the head was the size of a hazelnut, eyes distended out from the head, like those of a crab, even if none of its bones had solidity, the toes and arms were visible as was the penis, in the scrotum testicles the size of a millet seed, a somewhat appropriate analogy, or metaphor; the bones’ flexibility were truly wonderful , as if a Gumbo doll. As a city physician, Coiter was impressed, or perhaps believed his readers would effectively marvel, at the height of the Catholic Reformation, to offer an account of his dissection of a “six month old child,” investing humanity in the unborn with a stroke of his pen and a wave of his hand, declaring the definitive threshold of humanity to have been arrived at by the acquisition of a human form. Realdus Columbus, an anatomist who worked in Padua before arriving at the papal curia in Rome, described an “monster” the six month old unborn male infant brought to be dissected by him as twins of both sexes, imperfectly conjoined, twins of both sexes, the head of “this imperfect girl” attached or “thrust into the chest of a more perfect man,” fascinated with the status of hermaphroditism in the context of the Galenic model of sexual dimorphism illustrated in the Vesalian equivalence of penis and vagina to note the absence of ovaries–“female testes”–in the abdomens of hermaphrodites dissected in Rome.
Regular dissection of unborn “children” however fit within the scope of Renaissance anatomists’ office as public instructors about the body’s interior structures, even if they rarely wrote on childbirth. The privileged nature of studying anatomy among the men who taught medicine in Bologna was a platform to address readers of their books that would have been important for the authorities of the papal states, far beyond the anatomical dissection of the criminals whose bodies were often provided by city statutes to be dissected for “public benefit” since the 1530s, and which Vesalius presented at in 1540, arriving with an articulated skeleton in tow, inflating interior organs, and equipped with prints and chalk drawings that provided a basis to parse the structures that he so dextrously unveiled to audiences, in contradistinction from reciting citations of Galen’s simpler anatomical writings by the older anatomist he debated before the assembled students in a temporary theater. Was not the later illustration of the separation of placental layers, or the imagined chorion, in which the fully formed fetus lay nestled not akin to a sort of presto-chango trick, ably mimicked in the engravings of anatomy books, that affirmed the integrity of the fetus as an infant? While the unborn or stillborn that Dante Alighieri were showed as condemned to be perpetual residents of Limbo, while led by the ghost of the Roman poet Virgil to hear the “sighs of tormented grief that made the eternal air tremble” of those never shown a gateway to redemption, or the rite of baptism–an Augustinian concept–and remain forever cut-off from hope to their deep greif. Unlike the shades of the afterlife, the unborn bodies in these medical drawings retain their integrity, and, unlike the tormented shades Dante described, seem innocents.
This was a bit of a hot topic of debate among anatomists, although most of them who detected the appearance of a human form did not care or see the point of illustrating it, confining themselves to figurative description that placed the body in the natural world. Coiter had established a name in Bologna, a site of frequent anatomical demonstrations at its university, having worked with Falloppio, he of the investigation of female “seminal vessels” and other high-ranking lecturers on human anatomy; he had made a reputation by repeatedly elsewhere questioning the materialistic parlance of his fellow northerner Andreas Vesalius, as if they were suspect tendencies; if Vesalius claims he never had the occasion in his anatomical investigations in Paris and Venice to examine a fetus in detail, adopting the annular placental sac of a dog in its place by analogy, despite his foregrounding of the dissection of the womb, and his refiguration of the gravid uterus to reveal how it held an unborn fetus, almost poised to come forth. Vesalius had spent his career unpacking the layers of the body, both of musculature, the cranium and the heart, and his innovative articulation of the teaching skeleton, wired by holes drilled into the bones and fabricated for ends of ostension, has been retained and transmitted in medical education to the present; while less attentive to the fetus as a subject of anatomical instruction and display, his striking manipulation of the uterus of a female cadaver suggests a challenge to midwifery, and indeed female medicine, that was absent from the muscle-men and ostension of the dissection of nerves in the arm reproduced in the Epitome of his massive 1543 Fabrica corporis humani printed on woodcuts he had shipped to be printed by the humanist editor Opporinus of Basel, who had specialized in current medical debates. The image of the massive cadaveric arm, holding the nerves of whose forearm Vesalius had separated with one hand, above a manuscript describing their articulation with the hand, was nothing less than a sort of mis-en-abyme by which the anatomist illustrated the circularity between the nerves and muscles operating the fingers that performed the operations of revealing a clear account of the divine creation of the human body the text described, inverting the authority of the written text over the manual arts.
As much as Vesalius as celebrated as inventing a new art of anatomy that set it apart from medieval science of Galenic authority, the tendons that he held in one hand, stripped from the fascia that ran down the arms, beneath the skin and musculature of the forearm he used to reveal the the structural basis for the divine ability of the hand, skills confirmed by the left hand by which he detached the tendons from the large arm in one gesture, discussing or considering the muscular movement of the fingers in the text below the arm, while grasping the large cadaveric arm firmly by the right ungloved hand he had used to annotate a treatise explaining human fingers’ facility of movement: the anatomist’s hand meets the cadaver’s hand at the base of the engraving in a reverse image of the structural organization of the musculature of the arm that allows the very act Vesalius is engaged of dissecting and writing–offering a dense pairing of the operational use of the tendons of his own hands and the structure of the human arm.
Yet the place of the fetus–the bodily material waiting to be born–was an undercurrent most early anatomists were quite careful to address, and Vesalius described the structural revelation among distinct layers he postulated that wrapped about the unborn embryo. The anatomist described the ostensive unveiling of the unborn “fetus” awaiting to be born by analogy to the body’s muscular layers of flesh, muscles, and nerves, in woodcut images, removing the membranes he misunderstood of the placenta or “fetal coverings” in which a full-born healthy child was wrapped or swaddled. There was an odd pairing or disjunction, repeated in anatomical and embryological imagery, between the intact fetus, not violated by the knife of the anatomist, and the opening and of the body that provided the dominant convention, as Karen Neuman has shown, of obstetrical visualizations of the fetal body of the unborn.
To be sure, the intact fetus resting within the uterus, the healthy appearance of the child in the gravid uterus seemed perhaps an anatomical concession of the formation of life at an early stage by the surgeon who had fled Paris to finish his medical degree with high honors in Padua, being immediately assumed as the primary instructor of anatomy, as his manipulation of the uterus was foregrounded on the frontispiece to the Fabrica: the figure of the uterus, distended with the presence of a male fetus it housed, showing “uterine tunics” around an array of “fetal coverings” of a placenta, imagining the annular placenta of a dog, as his teacher had told him that the structure of the chorion and placenta were identical to the dog, arguing the amnion was fetal sweat from which the fetus was protected, and the anatomist might effectively unpack for viewers in several stages. There is a sense of reverence with which the anatomist who had illustrated his dexterity manipulating the uterus of a female cadaver describes “opening the uterus by an incision and without in any way damaging the fetal coverings that were withdrawn from the uterus and were placed here [in the image] separately,” but the reverence is not to the female body. While more practiced in the dissection of fetuses of cows, water buffalo, stags and goat–and dogs and swine, breeding litters–“several fetuses simultaneously”–his distinctions of the “fetal investments” (placenta) of ruminants, dogs, and men set a basis for comparative anatomy, difficult to illustrate, but skillfully magnifying the dense umbilical vessels.
Major organs are formed by eight weeks, but Vesalius would have been puzzled and raised eyebrows at the postulation of a watershed of six weeks, as the structure of the heart and other organs was only resolved between weeks eleven to seventeen, and would only feel movement far later. Was the prominence of the fetus in human anatomy accorded greater prominence after Vesalius’ work? To be sure, finding fault with the most celebrated, learned and well-spoken–as well as prolific–anatomist of his day was more than fair game and had been the bread and butter of his teachers, Falloppio and Eustachi. Vesalius’ near contemporaries, these men–Gabriele Falloppio, a Catholic priest, and Colombus, a papal physician, introduced the term ‘placenta’–as if to challenge the Vesalian premise that the abdomen followed a male one-sex model.
Their exploitation of Vesalius’ qualified familiarity with female anatomy or embryology is striking. While the logic of his dissection takes its bearing from muscles, bones, tendons and stable structural or architectural form, the terms lead to lacunae or aporia in his curious exploration of generation: whereas Vesalius compared the fleshy substance of the internal gravid uterus to the flesh of the spleen, suspending the fetus in a pellucid membrane, that the anatomist can remove the fetus from, and through which the umbilical vessels run to the fetus lying in the uterus, he depicted the fetus as fully formed within the uterine walls that he described the anatomist as able to peel apart by its layers, reasoning analogically by the dissection of animal fetuses, and electing to represent the human fetus as similar to the “belt-like placenta of the dog, or the coverings of a buffalo. Falloppio’s student Coiter challenged Vesalius’ allegedly materialist assumptions, objecting Vesalius’ characterization of the eye containing only water–not spirit–and other contemporary anatomists invested reverence in the human form, but as multiple seats of vitality worthy of careful study. His teacher Eustachio, remembered for his discovery of the inner ear, allowing hearing, wrote separate treatises on the kidneys, eyes, and teeth, according each its proper admiration and focussing on apparently arcane nature of individual organs as evidence of the complexity of creation. Were these men attempting to define the quintessence of a vitality not revealed by the morphology of muscles and bones? Their work may recall the systems failures all too familiar from gerontology or end of life care, as teeth exit the gums, kidneys fail, and eyesight declines with vitreous clouding, in a general ebbing of vitality from the human body.
The questioning of where vitality lay in the body, as much as the appearance of its hidden forms, provided a powerful logic for anatomical inquiry in later decades. How vitality inhered in the body was mapped by these anatomists as sites of dynamic interest. In the 1580s, the French physician Felix Platter pursue rather systematic study of unborn fetuses for authoritative confirmation of the formal appearance of the human body in these aborted fetuses, or miscarriages, showing the form of a two-month old holding hands with a newborn to which he was linked as a living being, setting forth the evidence of their shared humanity with the innocence of two playmates, out for a stroll in a bucolic setting or, presenting themselves to the world as in fact formally near-identical brothers, lest anyone ever consider the unborn not yet fully human. Later anatomists claimed sufficient precision to pin the emergence of humanity int he forms of the unborn at a set intervals to conclude this debate, trying out watersheds of after twenty-one days (three weeks) or even two, to assert the form of the body was recognizable, and therefore presence of a human soul entered that squishy body, even if it floated in beatific unawareness in an amniotic sac, as if a homunculus suspended in outer space worthy of inspiring a cinematic genius like Stanley Kubrick.
Fetal still-lives became a genre of memento mori of added charge as. a carefully constructed cabinet of curiosity, posing questions of the start of life and the nature of death, and the limits of birth: more than cast himself as a seventeenth century Gunther von Hagen in his use of “real” body parts, Ruysch hoped to “preserve the honor and dignity of the soul once housed in these bodies” in miniature treasures of curiosity that posed poignantly compelling questions of the start of life with their ungainly large heads. Displaying the museum in Amsterdam houses, rather than an anatomy theater, in multiple rooms of skeleton remains, Ruysch revealed his dexterity as an embalmer by mounting fetuses among his preparations arriving from other continents as a condensation or summary of worldliness of amplified curiosity, skirting the borders of fetal morbidity and the deep taboos it posed. The unborn child was the emblem of a liminal moment between life and death, perhaps more than a human cadaver, as the definition between “humanity” and animated life in the fetus so difficult to discern, if it might be tried to be pinned down by prodding the fetus for involuntary neural reflexes as Zerbi, seeking the appearance of a human form, as Galen or Coiter and Platter, or another telling sign, as the heartbeat now visually registered by an ultrasound. Ruysch’s audience seemed to delight in seeing the mannequin of the fetal or children’s skeleton animated among a sort of terrarium still life, against corals and dead insects, the centerpieces of a still life of death.
The fetal still life became their own genre of the becoming of life and the limits of life or human identity, child or fetus raises questions of “viability,” and the world to which the bones of the apparently unborn child could in fact emerge, or the otherworldly nature of this in-between world of simultaneous if apparent life and death, the delicate arrangement of their tine bones in an anatomical mannequin or maquette raising questions of their actual abilities of standing upright and displaying their own identity.
The balancing of such fetuses as puppets, held by the skeleton of a child, suggested a sense of showmanship of the formal identity of the body and birth of life at different stages of months: the skeletal puppet master seems to be unborn, as well, to judge by his immense skull, and absence of knitted cranial plates, as if he belonged to the drama of life as a show of his own device. Has the visual diorama of the anatomical curiosity been replaced in some sense by the new association of the ultrasound as a new vehicle of religious dogma, the basis for the judgement on of some measure of injustice, managing to register life without the first appearance of the form of body at all: placed amidst corals that register the marine-like form of the placenta that surrounded an amniotic sac, the oddly vegetal qualities of the unborn fetus, developed at tice the interval of the Heartbeat Law, confuses life and death and animation and inanimation in puzzlingly wondrous ways.
There is an eery way in which Ruysch’s attempt to This unborn skeleton situated on a pedestal seems to dance animatedly, balancing two fetuses, in an extended riff on the abilities of anatomical ostension replicated in mounted models that trumped the Vesalian wiring of a skeleton. The hero of this display of mortality seems, however, the unborn, but that odd concept of the “pre-born baby,” a concept that is now existing liminally not between the living and the dead but in a world without rights or agency.
5. Our own tools of imaging, or of mapping vitality, have led conclusively to the heartbeat, resolving the historical debates of Galenic and Aristotelian physiology by affirming the truth of the ultrasound as a definition of human life and the reverence it is due, in Texas, with an assist from a former Scalia clerk, to make it permissible for all citizens to bring civil suits against anyone who “aids or abets” an abortion, or allows an abortion to be induced or performed in the event “a physician detects a fetal heartbeat” by the ultrasound that the state already mandates: the mapping of mortality, or animation, in this line of reasoning, is entrusted to the physician at the bottom line, but extends to the ability of a “citizen’s arrest” of anyone who knowingly assists the physicians who violate the state mandate, rather than follow their own judgement or relation to their patients, but constitute a civil offense they have aided and abetted. Texas’ legislators have offered a bounty for their civil arrest as akin to how any citizen is entitled of migrants “illegally” present in its borders, a violation of custom and civic standards so grievous that can no longer be deputized to federal agents to enforce: the bounty not only encourages bounty-hunters, but creates a paralyzing atmosphere of fear in a state where clinics offering women abortion services have already dramatically declined in number.
The disconnect between a reduction of health care services and expressing pride as “the first state in the nation to successfully enforce a ban on abortions when the preborn child’s heartbeat is detectable” is stunningly unethical, and celebrates an authoritarian vision of forced compliance to the most reactionary ban on abortion in the nation’s history; Mississippi may soon vie for this distinction by pushing the threshold to fifteen weeks, an arbitrary benchmark not pegged to heartbeats but to the ability to perceive fetal movement, and formation of limbs, fingers, and toes. Of course, the call was also intended to crystallize a moment of issuing an energizing rallying cry of sorts around the fundraising for future legal defense, but was issued as if one had finally entered the true battlefield of morality, in an eerily echoing Donald Trump’s fundraising requests as a call to arms demanding immediate action.
The strategic of state-by-state upending of access to abortion was a legal strategy conceived by Jonathan F. Mitchell of Austin, who had advanced the idea of allowing private citizens to bring suite when District Attorneys were reluctant to do so. He offered a local workaround for state lawmakers in an article setting forth the practice for subverting national law in Virginia Law Review back in 2018; as Texas’ Solicitor General, as a plan to “induce compliance . . . .by providing for private enforcement through civil lawsuits,” unleashing a range of cases that would stuff court dockets, arguing fighting abortion at the local level could preclude federal challenges, in Federalist Society thinking. The non-profit’s new motivation to personally make these arrests was led to fears of intentionally deluging the legal system with abortion 24-7, by way of “if not hundreds, thousands, of lawsuits against not just abortion providers, but also the everyday person, whether it’s a lawyer or a counselor or a rape crisis center.” A local judge granted potential restraining order for filing civil suits under the provisions of SB 8, members of Texas Right to Life deemed it all but irrelevant, reveling in asserting: “a ruling by a Travis County judge does not change Texas Right to Life’s plans. Texas Right to Life is still legally authorized to sue others who violate the Texas Heartbeat Act, including abortionists.” As the human heartbeat is a sign of life, not of death, they vowed that they would ensure no one will “kill any pre-born babies once the heartbeat is detectable,” vowing to dispel the myth of modern society that “‘you can’t succeed unless you kill your pre-born baby.”
The timing of the case described in 2018 had reached the Court at just the right time. The Austin lawyer is a member of the very Federalist Society to which six members of the current Supreme Court belong–and which provided the basic litmus test for all nominees Donald Trump put forth in his Presidency, as he had promised to look very closely at their recommendations in his appointees to the Court during the 2015 Presidential Debates, signing up for taking his marching orders by presenting the list from which he would choose future nominees if elected. The Society, despite apparent ties to James Madison and Alexander Hamilton, was founded by neocons in the 1980s, the Reagan years, as a student club among those who felt ostracized for their conservative credos and libertarian tendencies at American Law Schools, and tried to chart a new path for legal reasoning. At places like the University of Chicago and the Hoover Institute, where Johnathan F. Mitchell studied, before dedicating himself to design strategies to render laws less likely to face challenges–designing local laws able to elude federal challenges or, as per the Washington Post, “making legislation more immune to court challenges.” Mitchell has argued that the very transition of determining “when a ‘burden’ crosses the line from ‘due’ to ‘undue,’ apart from a judge’s personal desire to see an abortion regulation enforced or thwarted,” as if the threshold of any cardiac activity provided that surety: decrying “abortion-umpiring” as if it were an arrogation of a divine right, Mitchell has argued that women’s ability “to control their own reproductive lives” by abstinence offers a far better restraint on the danger of pregnancy, as if sexual healthiness was less the issue than the need to temper an innate lustiness of the body reminiscent of the early modern period.
They dynamic of court challenges have in many senses replaced the relation of physician to patient. Even in the face of a chance of clear dissent from the Chief Justice, the presence of a Gang of Six provided a virtual lock on the court and a fracturing of legal opinion, enabled by a court stocked full of fellow-Federalists agreeable to disrupt the legal landscape and medical care to defend the principles and ethics they saw themselves as the staunch defenders–save, of course, Justice Roberts, who more wisely reasoned otherwise, but of course including the Stepford Wife whose charismatic Pentecostal church, People of Praise, normalizes subjugation of women and asks all wives to submit to the wills of their husbands as an act of faith.
These six have affirmed the arbiters of states’ rights to criminalize access to abortion he local fracturing of the landscape of health benefits in America has fractured the terrain in ways that have prefigured the tension between state and federal law around the issue extends to medical instruction: once removed from medical services, doctors specializing in women’s health are, in some states, not taught how to perform abortions.
The result is a fracturing of the nation in terms of how health care is understood, and a weird fracturing of how we can imagine health care as a right, justifying a language of the local resistance against offering universal health care.
The shifts of the landscape of abortion access in 2014 are broadly felt across the nation, as the end is to change national law. Twelve states have, anticipating the overturning of Roe v. Wade, passed laws mandating an immediate suspension or reduction of access to abortion if the opinion the justices have reaffirmed several times were ever overturned, increasing the stakes already placed on the case, and the erosion of its status as “accepted law” on a state level–a dualism that only really existed within the Civil War, of using local state policies to upend a federal decision along clear fracture lines of state policies.
Texas lies smack in the middle of these trigger laws and bans. The distances women must travel to clinics providing abortions are pronounced; the closure of many clinics from 2013, during the Obama Presidency, suggested a revolt against Roe v. Wade brewing on the ground, far from legal debates or at a remove; where the map of clinic closures constituted a serious reduction to the possibility of abortions, with closure of clinics widespread in the state, and open clinics only lying at green clusters that offered convenient access to only parts of the state, as huge areas compelled women to drive over a hundred miles to gain access to abortion–a restriction that was not viewed as “undue burden,” the standard that would be continued to be litigated in future years, by in 2016 preserving access to abortion for millions of women on constitutional grounds.
The reversal of this terrain of lack of access was the terrain on which SB 8 was launched, after Hellerstedt, attempting to shift “burden” from the woman whose right to elect to abort a fetus continued to be constitutionally protected by placing it on those who assist her. Rather than mandate a waiting period, parental consent, spousal notice, or admitting privileges the standard of “stage of pregnancy” that was affirmed in 1992 and, from 2016, mandated that restricting access to abortion must be framed in terms of furthering a state’s legitimate and compelling interest, effectively asking one to find a valid state interest in the following map that clearly suggests the limitations on individual rights:
6. Texas now privileges itself as a model for other states to circumscribe access to abortion once again, next perhaps in Mississippi, as the newest frontiers on curtailing access to abortion in the country. Is the costs that will be placed on women and women’s health across the state worth it, or is it worth it in a state where many low-income families have been removed unceremoniously from Medicaid, and where the place of healthcare exchanges were limited or refused, largely due to the very fact that the place of abortion within health care was flatly refused.
In Texas, of course, the culture of independent control of the law has been linked to the ethos of border protection, long before the promotion of a US-Mexico Border Wall. Border Protection was long unique as it was historically tied to vigilantism, with ties to white supremacists and militia, and become suspiciously less well regulated as a branch of law enforcement, as its rapid expansion compromising its role in law enforcement. Given the historical cooperation between Border Patrol with militias and extrajudicial citizen vigilantes dedicated to patrolling cross-border traffic, from Minuteman Project founded in 2004 to other patriot groups that hearkened back to the defense of sovereign bounds. The ties to such vigilantes may have encouraged a heightened culture of violence of Customs and Border Patrol in South Texas, reflecting origins of Border Patrol in white supremacist defense of Anglo settlers. Would this actually encourage travel across the border, in light of the diminished number of centers or clinics where women are able to secure abortions in the Lone Star State?
The impact of such declining access to a right has been increasingly felt by women across the south in ways staggering to map by the reduction of providers.
The reduced access to health care was a rather authoritarian move, shuttering clinics offering safe, legal access to abortion to women across the state, and subtracting a crucial aspect of health care for 5.4 million women of reproductive age in the state. But the aim of the fear, confusion, and insecurity that the passage of SB 8 spread long before September 1 was to set sights on the rewriting of constitutional laws. The sanctioning of citizens arrests reminded many of a Whistleblower Act of legislation that mandated seems characteristic of the Lone Star state, so restrictive are the limits on seeking an abortion in the state after SB 8. But the introduction of a “fetal heartbeat” legislation in the 2021-2 U.S. Congress, by Representatives of Texas, Pennsylvania, Iowa, North Carolina, Alabama, South Carolina, Arizona, Ohio, Oklahoma, Idaho, Illinois, Florida and Mississippi, the “Heartbeat Protection Act of 2021,” affirming “A beating heart is the clearest sign of life,” suggests a deep circumscription of individual rights. (Among its sponsors are Republican diehards Mike Kelly, Andy Biggs, Scott Perry, Louie Gohmert, Matt Gaetz and Jim Jordan.)
Although the most discussed model of inviting citizens to bring civil suit has been fraud prevention, which allow citizens to bring suits on behalf of the government to recover civil penalties by those who have made false claims that have defrauded the state, by prosecuting for himself as well as for the state, a far more telling legal precedent might be the Fugitive Slave Laws–edicts compelling northerners to return run-away formerly enslaved men and women to southern “owners” so that they might be integrated into the plantation economy. The attribution of criminal designs to all who facilitate access to an abortion beyond the incredibly early date of six weeks–a time when many pregnant women do not detect their pregnancies, and after which the vast number of abortions are indeed performed–purposefully introduce chaos into the place of abortion within medical care, and sanction the apprehension of all not conforming to anti-abortion norms.
There is no precedent for a “citizen’s arrest” in federal law, save the Fugitive Slave Act–an unsavory piece of legislation that seems in part to be the model of the sort of vigilante justice SB 8 encourages to negotiate relations of two different ethical codes and moral systems. The assertion of local rights of protection against abortion being performed in Texan lands has sanctioned, among vigilante groups, a sense of taking a higher law into their own hands. This would include anyone helping a woman travel out of state, for example, to obtain services of abortion as accomplices to a crime that occurs outside state lines–where it is perfectly legal–when they return to the state, where it is criminalized as a civil crime. The recent declaration that all citizens have the power to make citizen’s arrest on those women who have had an abortion at later than six weeks–the accepted metric of when the heartbeat of the fetus can first be detected by an ultrasound–suggests that as soon as that heartbeat of the unborn child can be heard, they become a form of life and of public property, and that whoever assists or aids the end of that heartbeat can be prosecuted by anyone who desires to make a citizen’s arrest against the abortion’s facilitation. While the state of Texas seeks to affirm a compelling reason for defining as criminal any action that facilitates the act of abortion performed outside the window of six weeks, the frame of reference that few abortions are likely to occur, the notion of constitutional rights are likely to be evaded or marginalized from what might pass as public debate.
As a candidate, Trump nourished his ties to the members of the Border Patrol, as if they were the perfect foil for his own authoritarianism. Pleased to have won their early endorsement, and to have supported his calls for a Border Wall, the issue became a signature one, promoting his defense of the nation in ways almost foreign to established political discourse. This was part of its huge appeal as a basis for “talking straight” and questioning Washington: the immediate and unprecedented endorsement by Brandon Judd of Trump’s presidential campaign–“He’s the first person who endorsed me!“–came as Trump had prioritized the border security as a platform of his candidacy–and increasingly to foreground with single-minded sense of purpose. Although “U.S. Customs and Border Protection does not endorse private groups of organizations taking enforcement matters into their own hands,” and distanced themselves from militia officially, the agency ratcheted up citizens’ vigilance about immigration emphasized that the needs of border security operations meant “Border Patrol welcomes assistance form the community and encourages anyone who witnesses or suspects illegal activity to call 911, or the U.S. Border Patrol tip line.”
Perhaps it is just to trace the popularity of the Border Patrol policy in Texas to the Fugitive Slave Laws, and to the vigilance of regarding persons as property, and the refusal to offer civil rights or citizenship to any but those born to the name. The question of redefining the criteria of citizenship was central to the authoritarian appeal of Trump’s campaign, a campaign that gained increasing energy from the specter of terrorist attacks, fears of bombings of terrorism, and the broad refusal of many American states to accept refugees from Syria–fomented by Trump’s suggestion that terrorists were among those seeking asylum as migrants who crossed the southern border, as if terrorists were arriving in migrant caravans bearing arms into the nation. In an atmosphere that demanded an authoritarian response without regard for civil rights to contain threats of terrorism, the cordon of the border wall seemed to staunch the entry of migrants, unemployed, gangs, criminals, addicts, rapists, and terrorists at one fell swoop. From the start of his presidential campaign, Trump used union members of Border Patrol in crafting press releases for the President and in the campaign season, with Trump regularly welcomed U.S. Border Patrol officers to the White House as if old allies. When Trump in a final appearance at the border as American President reminisced about the “great honor” after working “long and hard” on border issues “to be here in the Rio Grande Valley with the courageous men and women of Customs and Border Patrol.” The triumphal description of how a billion cubic yards of concrete for levees and six hundred and eight million tons of steel seemed a national shrine to the power of the Presidency to protect the border against migrants.
The authoritarian encomium to completing four hundred and fifty miles of the over 2,000 mile long border was a bond built with the men who defended the border of Texas on the ground, in the last public event of the Trump Presidency, when he seemed to reprise a sense of the greatest hits of what seemed a concluding political career, suggesting it was hardly a swansong but a moment of looking back with a sense of accomplishment. Trump expressed gratitude for having “gotten to know . . . very well over the last four years,” reviewing his Presidency while praising the “incredible . . . really incredible” people at Border Patrol to whom he had promised the wall to be built, now completed in part “exactly as you wanted it–everything!–including your protective plate on top . . . for extra protection.” As if concluding a transactional relation to the Border Patrol, the then President recuperated his hyper-masculine identity as a builder, detailing the materials of which the wall would be made–as a list of lusty products, “steel,” “concrete inside steel–and then its rebar–its rebar–a lot of heavy rebar inside– . . . as strong as you’re going to get and strong as you can have.” President Trump then acknowledged how all bets were off about building more wall in the Biden administration, as if to rile up his long-term allies at Customs and Border Patrol, whose union had first endorsed his presidential candidacy, excited by the priority he gave building a border wall. The wall was all but fetishized as a testimony to the strength of the nation. Current attempts to curtail women’s access to abortion use a similar stick of fear, threatening civil actions against all who have heard of the plans to seek an abortion past six weeks and did nothing to stop it, as if to instill sort of misplaced introspection across the land.