In recent years, judicial opinions have gained a unique status in the headlines of national news. As the courts have gained new status as a battleground where judicial positions rehearse divides in our body politic, the new status of abortion rights as a strategically posed issue has distanced debate from public health–or access to better health care–but a return to “first precepts,” to guiding freedoms, that have an eery parallel to how full-throated opposition to mandates of mask-wearing, hand-washing, social distancing, or vaccines grew as a defense of “freedoms.” So it was no surprise, in many ways, that freedoms of the unborn emerged as the latest judicial strategy to circumscribe access to abortion rights, and indeed affirmed a logic to revisit the constitutional rights of access to abortion in which old arguments are put into leaky new bottles as if they are arguments that are newly watertight, not only in Texas, but in ways that revealed a passionate hostility to abortion eerily akin to an electoral map.
How did this come to be? The territorial divide into “red” and “blue” states is almost a shorthand for anger on the ground at the expansion of access to abortion that Roe v. Wade guaranteed for all women when it historically struck down Texas laws that criminalized and prohibited access to abortion in 1971. The fight in Texas was not only with a long memory of the striking down of statutes fifty years ago, but the reversal of a decision that has been instrumentally used to foment a fault-line of red and blue states around foundational principles, rather than health or women’s rights to access comprehensive health care. Only in 2020, the fault lines that would have guaranteed an electoral majority for the Presidency and future nomination of Supreme Court justices did not hold–if it almost did–as new bellwether states like Georgia, Virginia, Arizona and Wisconsin overcame an often dominant hostility for a greater good.
John Seago, legislative director of Texas Right to Life, was content to entrust Justice Alito to represent his organization’s interests, as he deferred to the judgement of the one Justice with false modesty, as if giving thanks for his 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,” having identified a like-minded member of the court to recognize Texas’ right to ban abortion for all practical purposes as a felony against the public good. Texas is at the vanguard of eroding rights for abortion today, but the eagerness with which Seago proclaimed Scalia as an intercessor of sorts for affirming the state’s legislators’ ability to restrict access to abortion fit in a general process and broad strategy framed by dissenters to Roe v. Wade to curtail constitutional rights of access to abortion as a form of reproductive health care, of chipping away at consensus on women’s rights to privacy. Since this constitutional right was effectively sanctioned in the 1992 verdict permitting local states to restrict women’s right to privacy through”hurdles” to regulate pregnancy and reproductive health local legislators have already eroded as the law of the land.
The convergence of an eager local resistance to include abortion within reproductive health care and an eager legal culture attentive to restrict abortion in Texas has gained an aggressive urgency in Texas. But Texas is hardly an outlier in the nation, or atypical in the terrifying restriction of reproductive rights–it is one of the more legally creative sites of resisting access to abortion, but hardly a national outlier if one of the more visible sites for extreme legal experimentation in taking local control of the law of the land.
As much as Roe v. Wade is settled “law of the land,” the dissonance and pitched battles over access to abortion are less based on values of “human empathy” to the rights of the unborn–a specious argument that seems dangerous terrain to enter–than the deeply compromised terrain of reproductive health that women face across America, where women’s rights to access to abortion has needed to be defended. If Texas was long a lynchpin of sorts in this battle, divided by access to clinics and sharply divided as to the place of abortion in reproductive health care, the divided politics and demographics of Texas may conceal how deeply the curtailment of women’s access to abortion underlies division into “red” and “blue” states, as much as other ideological lines of debate: while this is not prime, the deepest heartland of deep red states map surprisingly clearly onto the diminished reproductive rights in telling ways–
–as those states that protect rights to abortion through “viabilty” established in Roe, or even extend the access of women’s protected rights to abortion beyond that date are more solidly “blue” and dominated by democratic legislatures.
How did the state become such a vanguard of the erosion of abortion rights and attack on science? The prominent place of Texas as a vanguard and a lynchpin of the curtailment of access to abortion may be but the first in the sustained curtailment of rights to abortion, questioning what constitutes an “undue burden” on women with increased aggression and alacrity. Does this pressing urgency partly not derive from the deep enjambent of attitudes to abortion that distinguish the state, placing the issue of abortion as a hot button issue that demands attention as it seems to lie, locally, at the enter of the culture wars? The state has one of the sharpest discontinuities in rates of abortion per pregnancy in the nation–juxtaposing counties with rates cresting half of all pregnancies with the majority of counties showing rates about 10% or even half–in ways that may make the state one of the sharpest sites of dissonant practices where cultures felt invaded by a new culture of maternal health care in Houston, Dallas, San Antonio and El Paso, pockets of higher rates foreign to the surrounding state–unlike, say, Florida, Washington, or Massachusetts, but akin to some parts of western New York, Oregon or Maine.
Johnston’s Archive, 2011 (published 2019)
This was combustable grounds for finding support to wage a battle against how Roe v. Wade had changed the law of the land, and to provoke outrage at the Supreme Court. The reiteration of heated ideological conflict has been refracted and recast in important rhetorical ways as technologies of determining the presence of a heartbeat on iPhones and handhelds has offered apparent proof of the need to redetermine the medical threshold of “viability” by which expert medical testimony had established. Although the verdict of Roe v. Wade set, as it has been contested as a threshold for access to abortion, the acceptance of local jurisdictions’ ability to place hurdles before women exploited acceptance of abortion among evangelical groups to seek to restore “balance” on what was painted as an extreme decision, offering autonomy to the pregnant woman to end her pregnancy. And as the widespread access to the ultrasound as an indicator of pregnancy, the claims cardiac activity have made to determine the “self” of the embryo has made everyone into an expert, and demoted the role of expertise in determining the medical explanations for access to abortion, recasting a historical question of medical ethics–raised as early as the Hippocratic Oath–by personal convictions and passionate intensity. The
In ways that have shifted the balance from the law of the land to public opinion–involving everyone from town councils to state legislators to take a stance on legal precedent–almost seems to have been enabled by how the televised hearings to confirm Supreme Court justices include an obligatory questioning of the status of Roe v. Wade as settled law have encouraged all television viewers and city councils to frame their own thresholds, as it has led many Republicans to develop abortion as a “wedge” ideological issue to divide the nation, encouraged not only by the accessibility of Apps to “detect & listen to your baby’s heartbeat,” exploiting the aural link of the unborn to a diffused technology, but mobilizing an openly authoritarian understanding of limiting access to abortion in early modern ways.
The unprecedented ‘freedom’ of removing state policies from judicial review by entrusting their enforcement to citizens, rather than the state’s District Attorney, suggests an abdication of the responsibility for enforcing a law that Chief Justice Roberts, himself a Catholic, begged the Court to “consider whether a state can avoid responsibility for its laws in such a manner.” The rise of “heartbeat bans” now launchd in a number of states suggest more of a multi-front attack on the “undue burdens” that restrictions on a woman’s right to chose before viability, challenging the Supreme Court and public opinion to determine whether they place “undue burdens” on women.
All were limited by state court actions, designed to exploit a roadblock placed between women and abortion rights. The restrictions on reproductive health recasts the procedure as compromising the “rights” of the unborn. The series of unprecedented legal rulings and state bills have served to restrict women’s rights to abortion, and curtail rights in favor of the unborn-effectively overturning the right to abort a pregnancy before “viability” outside the womb at twenty to twenty-two weeks. The struggle against the practice of abortion has become one against science and medicine, or medical expertise, in the Trump administration, as most American women of child-bearing age lived in states that had adopted restrictions in conflict with medical science, but the intensity of this opposition to scientific evidence increasingly became Texas, whose governor consolidated his popularity as he endorsed the hope of abolishing abortion outright in the state, banning doctors of pregnant women to “knowingly perform or induce an abortion” and then declaring the “aiding and abetting of abortion” to be a felony, while clarifying in false faith that those who undergo the procedure are not liable.
The calling into question of what is an “undue burden” is a response to the new composition of the court which Alito is a pivotal figure, as a Catholic jurist. The confirmation since 1992 that government can create laws that restrict a woman’s right to abort before fetal viability have been distorted and expanded in the past thirty years, in order to permit the state to redefine public health access and deny women the most personal choice of whether they which to bear a child. The bevy of new cases that seem designed to put on the front burner state legislatures’ rights to erode fetal “viability” from twenty to twenty-five weeks–replacing that threshold with new standards from six weeks to fifteen weeks, or two months before viability-suggests dangerous elasticity of balancing a “burden” against state legislators’ ability,
The decision to allow the law to stand, both by the Supreme Court’s September 1 ruling, a decision issued without legal argument, a week before Mexico’s Supreme Court ruled criminalization of abortion to be unconstitutional across the border, and an Appeals Court allowed the Heartbeat Law Texas’ Governor signed to take effect. The “heartbeat” legislation that claims to detect the flutter of cardiac activity to warrant legal protections is both a compromising of women’s long recognized rights, and jeopardizes the well-being of pregnant women by placing the body–as revealed by a mandated ultrasound, before the heart’s chambers are even formed–above a rationality of the mind. The outsized discrepancy of using the visualization tools that allow an ultrasound to register cardiac activity when a woman might not even be conscious of pregnancy suggests an eery surveillance of the womb, even if it is presented as part of a discourse on unborn “rights,” as if these rights were entrusted to elected representatives, rather than the rights of the citizens they were entrusted to represent.
At least twelve states’ courts have imposed restrictions or requirements before women can obtain an abortion, judged not “burdens” but that effectively have weakened the “undue burdens” felt by women.
Long before the mother can sense the heartbeat–or the heartbeat can be sensed by the human ear–the ultrasound has provided a powerful new metric for anti-abortion activists to restrict access to abortion. In marginalizing or bracketing of medical science from the “legality” of an abortion, the reading of the “sacred rights” of the constitution as extending to every “person”–rather than to all citizens–given that these persons are “endowed by their Creator with certain unalienable rights, . . . among these . . . life.” Such “sacred rights” extend, in an oddly authoritarian reading of the law, in a modern misreading of a credo of the Enlightenment, to “life” such as it is within the womb, but registered by ultrasound. The law invites and rewards anyone not a state or government employee to sue anyone performing, inducing, aiding, or abetting an abortion after a heartbeat has been detected, treating “fetal endangerment” to a form of felony–seeing “life” as the first fits and hints of detected cardiac activity. The abandonment of medical judgement or ethics in such a new technology of good government that both aggressively and regressively remaps access to abortion in ways dangerous to our society and collective well-being.
The ability to reveal the very first firing of electronic signals from cardiac cells that occurs around six weeks from conception is taken as a proxy to push the limits of a “burden” on women back to an early date, using the first impulses that allow the heart to form to force women to carry children to full term, independent of whether they want or are in a proper emotional or financial position to bear a child–or in a position to provide the child a compassionate childhood or love.
The reading of the “inalienable right” of “life”pinned heartbeat laws to a social media meme. The range of medical tools to abort the unborn fetus or embryo had been met by a panoply of legal restrictions pursued as a righteous cause that would foment much of the state against abortion, as if it were a defense of Texan liberties. The landscape of abortion rights had already, of course, been rather consistently challenged in Texas, as a campaign to curtail access to abortion within health care promised by public insurance plans: local law-makers had famously begun to curtail access to abortion almost a decade ago, by halving the clinics including abortion as part of health care services and shuttering clinics along the San Antonio-El Paso corridor–
–that marked a severe reduction in
Preventing access to abortion by local legislative action was vigorously pursued by a Republican majority and Attorney General with avidity as a purification of the state and reducing clinics in Dallas-Ft. Worth, reducing abortion providers in rather viciously strategic terms–had not the Supreme Court intervened and prevented abortion clinics from only being located in urban areas, to serve the 5.4 women of reproductive age who lived in the state in 2013. The law seemed a means to combat the spread of new technologies, as restrictions with no basis in science or medicine multiplied for many women across America, increasingly sending “abortion pills online Amazon” up 500% nationwide, as “how to have a miscarriage,” “home abortion,” and “self-induced abortion” jumped 75-100%, although “medical abortion” became distinguished as one of Google’s “breakout categories,” growing by more than 5000%. The terms were popular not in Texas alone, but in a broad landscape where abortion rights are threatened, and provoked intense online searching for taking abortion into one’s own hadn by women in Oklahoma, Mississippi, Louisiana, Idaho and Alabama living in fear that the Supreme Court would revisit Roe v. Wade became real real by 2019.
The nation may well be haunted by the fear of our entry into an era of DIY pregnancy health care. A curtain was terrifyingly lifted on that landscape in by skrocketing searches across the nation for “how to have a miscarriage,” spiking by over 95% in Arkansas, Oklahoma, and Indiana, and by over 75% in Alabama and Mississippi. (Half of such online searches turning to Google to inform themselves about self-abortions were made by women betwen 15 and 19; “home+terminate+pregnancy” is less common than “home+abortion” or “how+to+abortion,” but suggest a landscape demanding better knowledge and information about medically safe abortion practices, and suggest a looming landscape of health crisis, characterized by disinformation about terminating a pregnancy and the diffusion of half-truths about health care, removed from medical judgement.
The fear across Texas is palpable, with new legislation preventing medical personnel or doctors from providing abortificients to any women more than seven weeks pregnant. The reduction of access to abortion that the closure of clinics due to the law HB2 that the Court took up and reviewed already shifted the landscape of clinics, not likely ever to return to pre-HB 2 levels in the state as Obamacare became law. While the criminalization of abortion from six weeks of conception in “heartbeat bills” cloak the authoritarian curtailing of civil liberties in ethical garb, the hope to prevent abortion from occurring in any clinics borders on zealotry to end legal and safe abortion in Texas and effectively shutter all remaining clinics in the state. John Seago boasted Texas State Bill 8 was “written to succeed where eleven other states have failed [to restrict abortion]” before Greg Abbott boasted to his supporters “basically, we’ve outlawed abortion in Texas”–and is entertaining outlawing mail-order birth control.
While alleging it presents no burden on women, or prosecution of those seeking abortions, it encourages all citizens to remain vigilant about any abortion performed, promising large monetary rewards of a minimum of $10,000 excluding legal expanses for notifying the state of the crime by a logic that is modeled after malpractice. John Abbott told constituents that “basically, we’ve outlawed abortion in Texas”–a massive runaround of a right the Supreme Court relatively recently reaffirmed, and also moved to block abortion pills from arriving in Texas from out of state, and to prevent the most common and safe abortion procedures from being performed. The nation was increasingly confused, as “abortion law” jumped in Google Trends, from just before September 1, by about 100%, nationwide. The insecurity immediately generated by the Supreme Court’s readiness to refrain from any objects to Texas’ decision sets the stage for decisions of more states, and raises a chilling fear of the imbalance of the religious composition of the bench–no doubt a consequence of the difficulty of confirming justices who supported abortion rights openly, or defended the right to privacy or substantive due process. Yet the bench confused the nation about the legal understanding of abortion rights in unforgivable ways.
Two-thirds of the current Supreme Court were raised in the Catholic faith. Catholics on the bench have been appointed by Republican Presidents, as conservative Catholic ideology invested terrifying new authority in strict constitutionalism that echoes the respect for a doctrine of patriarchal obedience that has become increasingly close to reverence for its authority as a scriptural lodestone, independent of all ethical considerations. In ways that have echoed the current authoritarian dynamics of the Republican party, the Catholic conservatives on the court–Alito, Coney Barrett, Gorsuch, and Thomas–have helped shape a reading of strict constructionism based on respect for doctrine. The respect for doctrine, without democratic examination, may well have led the Court to endorse the Texas law on which John Seago and others hoped Alito would guarantee, by an endorsement without hearing oral arguments or evidence. The reduction of abortion from a medical procedure to a felony, a “wrongful death” to be prosecuted akin to medical malpractice, removes medical judgement of viability and creates a concrete criteria out of the embryo’s cardiac activity–the “heartbeat”–that most evanescent of perceived signs.
The paradox of such an endorsement of strict constructionism as a basis for restricting rights to health care is of course at ends with an increasingly secular society; it is presented as a means to contain the fears of the damages that a secular society can create. Yet the results on the ground without consideration of actual implications are terrifying. The attack on including abortion in health care services in the state openly threatens women’s adequate health care–and physical as well as psychological well-being. The shrinking number of clinics providing abortion, feared to be reduced to seven clinics for over five million women, had generated a live “Texas Abortion Clinic Map” promising to provide assistance to pregnant women in need with travel expenses–gas; bus/plane tickets; hotel who call 1-844-900-8908. How did we get to such poor bearings to adequate maternal health care? In large part by tabling the question of ethics to try to contain the constitutional right to abortion in restrictive ways by legal maneuvers, in order to sever abortion providers from medical health care. Already, many women are flooding clinics in nearby states, seeking to find health services that SB8 has declared a felony.
This might be a way of bankrupting Texas, if it didn’t effectively close all abortion clinics in the state. Perhaps vigilante-style arrests fit the go-it-alone age skeptical of coronavirus vaccines–or even of infectious disease–before personal liberty; the framing of abortion as a criminal act that extended to all who “aided and abetted” its practice replaced norms with a laissez faire notion of law. Seago’s prideful boast “this is a bill written to succeed where eleven other states have failed” vaunted the shift of burdens from women semantically, by inviting anyone who had heard of the procurement of an abortion after cardiac activity is detected when women are enjoined to listen to the heartbeat in unborn they are bearing to take stock of “their” choice to abort was, indeed, a bid to deny choice in the nation.
Texans are already required to they are far less about medical ethics and not an aggressively preemptive strike to the extension of reproductive health care within public insurance plans. If anti-abortion jurists like Antonin Scalia and Byron White have long argued that int heir “extravagant use of judicial power” jurists had “concocted” a “right to abortion,” lawyers have framed the detection of a “fetal heartbeat” in the embryo to concoct a basis for fetal personhood six weeks from conception. This far more dangerous fiction of mapping the start of personhood is a steep erosion of women’s rights that manipulates the role expert medical opinion played in Roe v. Wade as a basis to affirm access to legal and safe abortions before fetal viability to a landscape of legal restriction that limits access to abortion by barriers to health care, money, and the nature of the health insurance policy you have–deep ethically problematic obstructions–from preventing abortion from being funded by Medicaid to requiring medical screenings or procedures without therapeutic benefit–to remove access to abortion from economically disadvantaged populations while it is available to those with different health care policies.
Rather than allowing abortion to be recognized as a part of health care, in a battle between states’ rights and reproductive rights, targeting the constitutional right of pregnant women’s liberty to choose an abortion in the United States, on ideological grounds, by exploiting our current fractured political map.
The rather “dark map” of restrictions on abortion that state legislators have attempted to pass or passed to overturn what was once settled law of the land suggest a local legal activism with stunning parallels to secession from the Union or what was judicial consensus since 1972. Comparisons to the 1857 denial of citizenship on the basis of race (Dred Scott) or the war crimes of Nazi Germany (anti-abortion activists regularlytie Margaret Sanger, founder of the Birth Control Review, and Planned Parenthood, to Nazi doctors or the KKK) attempt to reclaim high moral ground in public opinion that “heartbeat laws” offer a popuilar visual on placards, social media, and right-wing mass media to bypass federal law–by introducing or adopting laws advertising restrictive abortion laws in multiple states, laws openly crafted to strike fear into doctors, who are no longer entrusted to follow ethical standards in their own work.
The map is of course misleading, but suggests the scale and concerted nature of legislators’ attempts to block or constrain access to abortion on local jurisdictions by 2019-21, independent of the burden they posed on pregnant women.
The optic of ethics in which abortion is debated since the Hippocratic Oath featured a vow never to provide “abortive remedy,” or give any “deadly drug,” lest doing so contravene the sacred relation of doctor to patient, is essentially replaced by the broadly restrictive nature of laws that forbid abortion even in cases of incest or rape, in many states. The agenda is rooted in taboo. Even if the heightened restrictions on abortion in Texas were unprecedented, and unimagined by anti-abortion activists until recent years, supporters felt confident the restrictions to abortion were sufficiently cloaked from courts to be a done deal. Activist groups smirked with full confidence in a turning of the cultural tides, “it all comes down to Alito,” entrusting the Justice to restrict women’s access to abortion or pry abortion from pregnant women’s constitutional rights. Justice Alito, the same Justice who as circuit justice would entertain the appeal from Texas Rep. Louie Gohmert to pose a 12th Amendment challenge to seating of state electors on January 6, 2021, to delay certification of the electors vote before gaining an injunction to invalidate Joe Biden’s massive electoral victory, was hoped to radically curtail access to abortion of women of childbearing age never issued the injunction to stop the certification of electors. He however summoned enough votes from the bench to decline to interfere in the implementation of Texas’ restrictive laws, rather than rebuffing it himself.
The new medical construction of “fetal heartbeats” provided leverage, even if the cardiac activity called a “heartbeat” is slight and difficult to detect. Embryonic cardiac activity is far harder to perceive than the thum-TUM of a health sinus wave. Yet calls to protect them flooded social media and offered a flag for the movement to create a dramatic a shift in the landscape of abortion. In the name of “protecting the unborn” of whom they cast themselves as the advocates and lawyers, anti-abortion activists have introduced a spate of “heartbeat laws” that stand to remove abortion from medical care in ways that will stand up to judicial review–to win support from courts that grant legislators’ abilities to frame local laws, rather than address ethics at all. The actual remove of such laws and debates about cardiac activity of the unborn from ethics–and their roots in the fractured and fragmented ideological landscape of the United States–is evident in a map of the distances women were obliged to travel to get abortions; if the band of blue mirrors the Rockies, the red expanse in the header to this post tells a sad story. Overturning Roe would within a year increase the average distance of child-bearing women about 250 miles from the closest abortion clinic, and decrease abortions by just under a third–or 32.8%. Indeed, Texas clinics that provide abortion services report about 90% performed after the first six weeks from conception.
While fought on social media as about “heartbeats,” the fight is for a new national geography of health care, even if it is fought now in the Texan legislature and Texan courts.
The rise of “trigger bans” that would go into effect if the law is overturned in eight states provide low-hanging fruit for changing the geography of abortion access, and thirteen additional states are likely to follow suit, immediately growing the distance of 40% women between 15 and 44 from abortion clinics.
The legal fight in Texas over SB 13 is an attempt to provoke this new geography that pushes abortion outside health care, and indeed outside prenatal care, but has flooded social media and protest placards with the symbolic image of a red heart, ever since Faith2Action founder Janet Fletcher posted on Valentines Day, 2012, the primal emoticon of the heartbeat as a manifesto and cri de coeur in Ohio, in an attempt to persuade local legislators to curb women’s constitution rights to health care for humanity, that has migrated to nation-wide circulation, and was morbidly contrasted to flat-lining at the Right to Life marches in Washington, DC during the Trump Presidency. Is the call to circumscribe the geography of rights not a “grassoots” effort of political involvement by the Republican Party for some time?
There is of course no similar sinus wave in a six-month embryo, whose cardiac activity is a reflection or response to the heartbeat of the mother who is bearing it in her uterus, but this is a casebook example of how the diffusion of only a little knowledge can go so far to cause untold pain, by transposing the now omnipresent tool of hospitals to register the likelihood that an unborn come to term–“fetal wellness”–to a way to restrict abortion rights for women and assert claims on authoritarian terrain of “fetal rights.” Proving that a little knowledge can be instrumentalized to cause great harm, the “Smart Fetal Heart Monitor” now widely available has helped envoice the embryo by a device shaped like a feeding bottle, promising the ability to “listen to your baby’s heartbeat,” even before the “baby” is born.
The Texas law promoted by the “heartbeat” icon has made the figure of a heartbeat, foreign to the embryo until its chambers form, and even then not registering the flow of oxygenated blood in cardiac chambers, into an alternative flag able to catalyze a social movement that helped legitimize a legal logic being devised in quite strategic ways for the court’s ears. But the adoption of the law fit the gerrymandering of political space in Texas, where the intensified opposition between political parties have exploited abortion policies as a divisive issue, behind the rallying heartbeat flag.
The flag long served to chastise state legislators for their failure to defend the rights of the unborn. While the very notion that state legislators to contravene settled constitutional law boggles the mind enough to generate much head-scratching, and some states to assign funds to provide money for abortion access, and the city of Austin to reject Texas’ ban on abortions beyond six weeks, rejecting the conscription of Texas citizens to make citizen’s arrests for performing abortions–affirming a blue opening, as it were, in a deep red state. As Donalds v. Jackson is being heard by the US Supreme Court to address the fifteen-week limit on abortion in Mississippi as a chance to revisit precedent, the Texas law gave rocket fuel to states’ rights to restrict abortion across the mediascape, energizing the anti-abortion activists at the hopes of realizing a landscape where preventing access to abortion was no longer an “undue burden” on women. Even as federal judges in Texas are weighing the Dept. of Justice’s intervention against allowing private citizens to sue those assisting in an abortion beyond six weeks from conception, the intensity of a fight on legal grounds is bound to continue, far removed from questions of ethics or medical ethics at all. It is, rather, disturbing evidence of the fragmentation of political space, where the rights of young mothers and indeed the health of infants’ actively beating hearts is sacrificed on an altar of intensely oppositional politics of gerrymandering and redistricting designed to shore up Republican seats, in a landscape of ever more pronounced political division–
–lines which echo the elimination of access to abortion in pockets of Democrat-voting cities in a local landscape that would offer no access to pregnant women to terminate pregnancies.
1. The fear of curbing of women’s health care options that were amplified in Texas–as if by extension of the vigilante style expansion of self-styled Border Patrol policy was a curtailing of civil rights akin to the restriction of citizenship for migrants, central to the authoritarian appeal of Donald Trump’s Presidency in which antiabortion activism had expanded with increased force. One can map Texas as a microcosm of a divide in the difficulty of access to abortion and the heart of a divide between Americas with diametrically different concepts of access to abortion as a right to pregnant women’s health care.
Rather than having to do with medical “ethics,” the battle for enshrining an authoritarian restriction of abortion to a window of the first six weeks after fertilization seems a gambit from antiabortion activists, while the Supreme Court seems balanced in their favor, who have been plotting to rejigger the law of the land to impose well-crafted legislation on the nation. Governor Greg Abbott’s celebration of the enforcement last monght of Texas State Bill 8–“SB8”–only followed longterm agitation by antiabortion activists, eager to shift the status quo of health care prompted fears of a shifting landscape of legal rights and fears of a landscape of reproductive health and access to health care where rights to abortion were severely curtailed. Fears of emerging divides access to health rights is a terrifying inheritance of the strategy of Republicans in the Trump era, turbo-charged by members of the Federalist Society who find no constitutional right to abortion to exist.
While “rights” are assumed in the Constitution to extend across the land, the increasingly sharpened ideological divides of the nation that are now refracted in our electoral landscape. The different state laws that have prevented or curtailed abortion as a right of pregnant women before the viability of the fetus or embryo they bear have been eroded nationally, so that the national landscape is less defined by “rights” or health care–or medical science–but as subject to local convention that have re-interpreted the standard of “viability” in small but critical ways, undermining national consensus about health care: some 43 states restrict abortion in some way after a point in women’s pregnancies that is determined by local government; 47 states have introduced over 600 abortion restrictions that erode legal consensus in an attempt to force the Supreme Court to review Roe v. Wade.
The divided landscape that pregnant women face place new stresses on prenatal health care workers, but closely reflects our toxically divided political landscape as it has become a push-button issue to generate poltical support and ideological rigidity. As the fight for abortion rights has moved from medical grounds to legal prescriptions, areas affirming abortion rights have shrunk, under an onslaught from more “conservative” Americans increasingly attracted to authoritarian politics and politicians.
The fears of placing about two-fifths of women between fifteen and forty-four at increased travel distance to clinics offering abortion–by two hundred and fifty miles average, for women in states who failed to enact local protections.
The March, 2020 Executive Order in Texas to delayed or postponed all medical procedures not necessary to preserve a patient’s life be postponed in the current pandemic would limit access to abortion–removing it from comprehensive health care–that already seemed to create a landscape of reduced access to abortion that seems to have gained a cartographic logic to revise notions of health care by placing women of child-bearing age at a striking geographic distance from abortion providers–deferring the demand for care to nearby states when possible. The dramatic shift in driving distance within Texas that the curtailment offered in just a few decade suggested a chess-board like strategy of narrowing the health options of child-bearing women, or restricting practical choices for the poor.
Right to Life groups trusted Alito’s willingness to allow the Texas Heartbeat Act, content that a legal architecture had been devised to shift attention from the burden on pregnant women to the moral good. They had long been eager to catapult their efforts to tip national law to national attention, in an era when several states–here shown in aqua–had enacted preventive guarantees on access to abortion.
The new blocks of “red” states may not be dense with population, but suggest real geographical obstacles for poorer women to access abortion in a huge number of areas below the Mason-Dixon line. As if remembering the support that Donald Trump gave to Right to Life organizations, antiabortion activists felt increasingly secure they had obviated legal objections to the ‘undue burdens’ placed on women seeking abortion–even if they had guaranteed effective closure of abortion clinics and access to abortion across the state. For they had crafted a way to restrict access not as a prohibition, but rather as a “right” impervious to judicial review of the sort that had threatened past state legislation.
The national landscape is certainly hard to process. If the 2013 restriction of abortion and abortifacients and the restriction of abortion clinics to meet the standards of surgical facilities closed about half of the forty one clinics in Texas, in practice all clinics were shuttered as of September 1, 2021. If facilities offering abortion in licensed clinics have been diminishing since before 2016, when this map dates, their decline has been matched by the rise of “Crisis Pregnancy Centers” offering women the promise of free services, images of aborted fetuses that are designed to shame them for their choice, and misinformation about abortion and its alleged emotional and physical risks of abortion, as well as moral chastisement and religious beseeching, if not outright moral berating, designed to replace the medical care or reproductive health settings with sites of reflection, centers that now far out-number abortion clinics three to one in the nation–and not only in “red” states alone.
These centers are largely run by religious women as ministries, but if they receive state funding in fourteen states, most deceive the poorer clients they seek to attract by emulating medical clinics, by including rooms for ultrasounds and staff in scrubs, and pregnancy tests, \without professional training beyond evangelical ministry and a commitment shepherd women toward Christ. Tax-payers foot the bill in Iowa, South Dakota, Pennsylvania (for ninety-eight CPC’s), Arkansas (forty CPC’s), and Mississippi (forty CPC’s), abetted by Texas tech billionaire Farris Wilks’ “Online for Life” non-profit has helped Crisis Pregnancy centers better market themselves to low-income audiences of color online.
Right to Life organizations had long awaited the tipping of the scales of justice that the Trump administration had set into motion–not only on the Supreme Court, but misinformation about abortion on a near-global scale: the global organization of “Heartbeat International,” which after securing tax-payer funding for “Crisis pregnancy” centers in the United States before the ruling on Roe v. Wade, advancing anti-abortion interests in eighteen countries globally, describing the negative effects of abortion–from cancer to risks of mental illness to medical complications–and providing ultrasounds. The growth of pro-life centers as National Institute of Family Life Advocates, boasting 1,200 of its 1,600 pro-life Pregnancy Centers to be licensed medical clinics, aims to help “vulnerable women and families choose life for their unborn children” across the nation, providing “legal guidelines” to protect pro-life “pregnancy centers” fulfill their mission by protecting “centers from legal pitfalls.”
The growth of “Heartbeat International” and its global natalist crusade had developed before Roe framed abortion rights in the context of viability of the fetus outside the womb, at twenty-four to twenty-eight weeks or of gestation, but the state of Texas became a battleground for overturning protections on access to reproductive health might well be placed in the deceptive disinformation about the risks abortion exposes women–from mental illness to cancer to marital relations–lies that the Ohio-based Catholic non-profit has spread in 2,500-4,000 “crisis pregnancy centers” across the United States and at least eighteen different nations, actively conducting a global war on abortion by medical misinformation.
The successful introduction of the “fetal heartbeat” law as a new threshold for access to abortion used the rather illusory cardiac impulses visible on a sonogram introduced in prenatal care as a means to reassure pregnant women of the viability of pregnancy as a means to impose penitent reflection. In Texas, the notorious anti-abortion group in Texas had readily identified Alito as an advocate to staunch a tide of judicial review of restricting access to abortion in Texas and other states, from banning the safest and most widespread abortion procedure after the first trimester or prohibiting abortion beyond seventeen weeks from conception. While the right to abortion is constitutional, local legislators have even passed bills threatening to suspend physicians’ licenses for practicing abortions beyond six weeks since conception–based on the fiction of a recognizable heartbeat can be detected and registered by mandated sonograms–which anti-abortion activists made central to Texas State Bill 8–“S.B. 8”–to re-recognize abortion beyond six weeks gestation a crime against the common good that merited a reward of over $10,000 for identifying all who “aided or abetted” such a crime.
The spread of mandated ultrasounds has rather disturbingly grown across the United States as a type of non-medical intervention since 2013. Their effect remains unclear on health care. Even as they have led women seeking abortions to be forced to view and have described to them–whether they desire or not–in states of Texas, Oklahoma, Louisiana, North Carolina and Wisconsin, as an odd interruption of medical care. It is less conclusive relation to women’s change of heart to proceed with an elected procedure. What was imagined as an exercise of biomedical introspection was held up in local courts. Yet the image-making technology able to confirm viability of a pregnancy has now been quite alarmingly high-jacked in Texas as a way to remap the start of personhood in the embryo, in hopes to curtail access to health care in ways that would remap women’s access to reproductive care.
The onslaught from legislators of restrictive curbs on access to abortion, long in coming, stands to bloom post-Trump, invited by the new stamp Trump put on the United States Supreme Court, increasingly receptive to how the late Justice Antonin Scalia in dissenting to abortion rights–rights he claimed invented and absent from the Constitution–should be recast by local legislators and local votes in order to shift the law of the land. The shift in tide has been long coming, having simmered under the threat of the expanded individual mandate. But it was nourished within a media ecosystem of Fake News and attacks on expertise, on websites designed for “navigating modern complexities” (Mercator.net), or the Population Research Institute,–dedicated to exposing abuses of human rights in population control and the myth of overpopulation. The 2018 consolidation of a conservative majority on the bench of the nation’s highest court prompted “testimony” of an unborn nine week “baby”–an in utero embryo–via sonogram before state legislatures like Ohio, as women at the start of their pregnancies had ultrasound before state legislators’ Heath Committee hearings, as they entertained the restriction of abortion after the first detectable heartbeat in testimony for the first hearing of “heartbeat” legislation in Ohio in 2011, before similar statutes were adopted in Arkansas (2013), North Dakota (2013), Iowa (2018), Kentucky (2019), and Mississippi (2019), “to protect our fellow human beings with heartbeats.” The rationale offered that the embryonic “heartbeat” is an indication of 95%-98% chance of the birth of the unborn child, but plays in an odd game of futures to restrict women’s access to abortion, requiring all doctors to compel the pregnant mother to listen to the heartbeat before an abortion procedure, to tug on her heartstrings just in case.
The Fake News ecosystem swung into full swing around the right in a pushback on an insurance mandate or universal health care, fearful of the expansion of health care to pregnant women, foresaking the unborn. Janet Porter, the self described “Heartbeat Bill Architect,” founded a Faith2Action nonprofit to promote the six week ban, leading her to be helped during the Obama presidency by southerners Mike Huckabee, Michelle Bachman, Steve King, and Roy Moore, and, since 2017, Mike Pence, as the nonprofit which now identifies itself as “birthplace of the Heartbeat bill” has exercised its online muscle by offering a template to draft legislation limiting abortion impervious to law suits and litigation to redraw the map of health care in America. In using the apparently objective registration of “fetal health” in a sonogram administered in hospital clinics, they seek to introduce scientific criteria to “pierce the heart of Roe v. Wade,” by ensuring that “God-ideas get multiplied in state and local legislatures across the nation,” apart from constitutional rights.
However, false precision of identification of the fetal heartbeat as a sign of personhood and life has become a rallying cry for the new legal strategy long evident in local legislative trends as sixteen state legislatures considered legal bans on women’s access to abortion. The false objectivity of the promise to “ban abortion from the moment in pregnancy that a heartbeat can be detected” shifts the threshold for legal abortions in many states, claiming to reflect on the “best methods of standard medical practice” to detect “embryonic heartbeat[s] . . . very early in pregnancy, typically by 6-10 weeks gestation.” If transabdominal ultrasounds detect these “heartbeats” by 7-12 weeks, detection of a heartbeat “even earlier than six weeks”–even three weeks from the last menstruation!–seems a revelation of the divine power of creation, and an eery celebration of the proto-human form as alive, in the sense that it seems to have a crude arterial and venous network, and a partitioning into atria and ventricles in a proto-heart, with defined aortic arch arteries, as well as a ventral and dorsal aorta, completed by an often preceptible flutter of cardiac activity, though far from a steady rhythm. But the argument that even the slightest beat is a sign of humanity, led to the crusading call that “to ignore that indicator, the heartbeat is heartless” has put the antiabortion activism on new terrain.
The Heartbeat laws are among the strongest pro-life laws ever adopted in a state known for curbing access to abortion. But the legislation is national, and not limited to Texas. The rise of “fetal heartbeat” bills strategcially curtailed access to abortion both in Texas, Georgia (HB481), Florida, Kentucky, Mississippi, and Oklahoma, and many other states, in an attempt to shift the rights of access to abortion and erode the Supreme Court’s definition of constitutionality of access to abortion as defined in 1973 landmark ruling Roe v. Wade. The spread of “heartbeat” laws attempt to reduce the threshold adopted in many states in the last year of Donald J. Trump’s Presidency, in an attempt to compel the Court to revisit the issue with the benefit of its changed composition and pro-Life tilt.
The registration of fetal “heartbeats,” a cardiac flutter that is one index of healthy development of an embryo, has become a basis to restrict women’s access to reproductive health, that has accelerated local legislation across the nation restricting abortion rights. Since the powerful figure of the heartbeat was focussed on–rather than fetal viability, or even the transformation of embryo to fetus–what has become a rite of passage for the medical observation of pregnancy has become a determining factor to redraw the burdens of restricting reproductive health. And if many of the local laws were blocked by judges as imposing undue burdens on pregnant women–as the 2017 restriction on abortions beyond fifteen weeks, or banning of Dilation and Extraction–the August, 2021 reversal of the illegality of banning the safe practice of “Dilation and Extraction” followed the decision to criminalize abortion beyond six weeks from conception, effective September 1, 2021–re-writing women’s access to reproductive health; Texas had already in 2013, in the early years of the extension of health care, to ban abortions beyond the twenty months from conception, as well as restricted abortions to be performed in sites with the standards of ambulatory surgical centers and by doctors with admitting procedures to nearby hospitals, allegedly for the health of the formerly pregnant woman.
The “heartbeat” threshold of six weeks was broadly adopted across southern states, before the Supreme Court allowed the Texas law to stand and refused to block its Sept. 1 enforcement.Continue reading