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, trusted the Justice to represent their own interests: “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,” as if 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. 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. If we have tried to map this as a Texan peculiarity, although there are good reasons to see the authoritarian nature of the dramatically receding windows at which women can seek abortion in Texas as a reflection of long-term restrictions on access to abortion as a serious problem of health care and a state in which constitutional rights are under attack. While access to abortion had been “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.
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, if not filter bubbles, as a stratagem to recast national laws about access to health care by a regressive and retrograde platform of anti-abortion activism, dressed in the terms of modern science. The hope to use the increased technologization of pregnancy as a standard for curtailing abortion would create a dangerously discrepancies in levels of public health access in the nation–a terrain of extremes in health care tantamount to translating increased extremes of climate change to legal terms, masquerading in a language of medical objectivity in its rigor, in order to conceal its authoritarian ends. While the 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. By entitling all Texans to bring civil suits on their own, however, as agents of the state, they created a geography of local precedent that trumped a woman’s Constitutional right to privacy.The network of obstruction seeks to actualize a new geography of health care in the country, with passage of SB 8, by making Texas a model of enacting restrictions on abortion impervious to judicial review, by appealing to retrograde principles of moral purity in the guise of “heartbeat laws” to affirm fetal personhood.
The shifting groundmap 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.
The new legal strategy rests on the determination of cardiac activity in embryos–termed a “heartbeat” to invest it with a sense of personhood–but casts abortion as a crime that goes against the public good it might be considered medical malpractice. By creatively adapting whistleblowers’ right to sue any entity committing wrongdoing in an organization to abortion providers, promoting civil suits for assisting abortion in the name of government distributed the agency of legal enforcement in the state as a moral economy of personal judgement and justice, dispensing with the office of a District Attorney to prosecute it as a crime that was dispersed among all who helped the pregnant seek an abortion–all but abolishing her legal agency of redress, and striking fear into abortion providers for opening themselves to civil suits. The paradoxes of invoking the “heartbeat” as a persuasive standard to manufacture alleged dangers of abortion beyond six weeks–when over 92% of abortions are performed nationwide within thirteen weeks, and most women are not cognizant of pregnancy at six weeks–elevates the ultrasounds now legally mandated for all seeking or requesting an abortion from a tool serving maternal and fetal health to a mode of legal surveillance of the womb.
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 Jonathan F. Mitchell seem to have framed a local law shielded from judicial review: in allowing citizens arrests for all “abetting” abortion in the state, State Bill 8 restored criminality to abortion, removing abortion from health care to return to a landscape of an era when the extraction of a fetus was illegal, far beyond the thirty Texan city councils that now self-identify as “sanctuary cities for the unborn,” inviting legal action against involving themselves in any strategy that “aids and abets an abortion.” In ways that rather ingeniously appropriate the near forgotten geographical divide of contested “sanctuary cities” that refused to dedicate local resources to enforce federal immigration laws, that provoked the wrath of Texas’ Attorney General, the new sanctuary cities seeking to curtail abortion may provoke a new national divide, hoping to reach a newly balanced Supreme Court to provoke the removal of abortion from the constitutional protections of a pregnant woman’s rights to privacy.
The division of this national landscape has clear 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 access 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 in nine states 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–an attempt to seize the legal high ground, even as abortion rates had in fact dramatically 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, and that 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 reconstruing personal injury, and personal freedoms, the potential clogging of local courts was less the intent than to paralyze health networks by fear.
As Justice Antonin Scalia first opined that abortion was to be understood not as a constitutional right, but only as determined by voting on local laws, city councils in Lubbock and Waskom, both in Texas, and soon twenty-five other municipalities in Texas, Nebraska, and Ohio revealed a legal strategy from 2019–the date when a former clerk to Justice Antonin Scalia, former Texas Solicitor General Jonathan Mitchell, framed a unique strategy of legislating limits on access to abortion at a local level. Having offering legal assistance to frame local statues to circumvent the reluctance of Attorneys General to criminalize early abortion, and promised imperviousness to judicial review, the new edict in SB8 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. 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 a community and family surveillance, boosted by the promise of $10,000 bounty per abortion would encourage surveillance of family members, among generations, or at workplaces.
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. 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 pregnancy and an authoritarian legal culture. Many states adopted the “heartbeat laws” before Texas devised its vigilante policy of rewarding 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.
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.
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. Hopes vested in Justice Alito grew as Texas Right to Life promoted “Sanctuary Cities for the Unborn” movement, hoping a blossoming of local laws might rewrite national laws on abortion, redefining not the U.S. Constitution, but 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. 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 to frame a national call for eroding access to abortion. The day that 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, in a slick sleight of hand,–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, describing removal and extraction of the fetus from the womb 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
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 preborn 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 decree is local, but the dramatically different local determination of how late abortion is permitted is a removal of 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 the window at which state laws permit abortion in ways that have already eroded what is the “Law of the Land”–but the “six weeks” threshold shortens the window to below when a woman is even likely to know she is bearing a fetus. But the medicalized logic which SB8 presented to the public as its rationale for such a constriction of the threshold at which Texas residents were granted “rights” to an abortion conceals the strategic gambit to undermine longstanding consensus about “settled law” since Roe v. Wade, taking “weeks past fertilization” as the metric, rather than the viability of the fetus outside the womb, or twenty-four to twenty-eight weeks. The analogies for this Solomonic decision were very Old Testament, with abortion doctors reach back to the Book of Esther, seizing upon a premodern image of female agency of begging for mercy to elevate their legal fight against the extinction of the unborn: the OB/GYN assumed the archetype of the female plaintiff who masquerades to avert Jewish genocide to represent himself as advocate for the unborn, while touring nationally before anti-abortion legal groups as if to hint at a legal stratagem that trumped his responsibility to counsel female patients.
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.
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.Continue reading