Heartbeat bill in Pa.: What are the chances the state passes a ‘dagger into Roe v. Wade’?

Philly.com

Members of Pennsylvania’s Republican-led legislature have tried several times to enact laws prohibiting abortions earlier in pregnancies than is currently allowed, and some antiabortion advocates believe now is their time: they have national momentum on their side.

Lawmakers on Monday announced they were introducing a “heartbeat bill,” or legislation that would ban abortion after a fetal heartbeat is detected, which usually occurs around six to eight weeks gestation. More than a dozen states have introduced heartbeat bills, and a handful have enacted them. Just three weeks ago, a federal judge temporarily blocked a heartbeat bill enacted in Georgia.

But Pennsylvania is not Georgia. Gov. Tom Wolf, a Democrat, has vowed to veto any antiabortion legislation that makes it to his desk.

So what’s the point of introducing the bill anyway? Here are answers to that and your other most burning questions.

What would the heartbeat bill actually do?

Currently, a pregnant person can obtain an abortion through 24 weeks in Pennsylvania (or later in the case of medical emergency). The heartbeat bill would effectively make that cutoff six to eight weeks. Both critics and doctors say many women aren’t aware they’re pregnant at six weeks, meaning the legislation could effectively ban most abortions in Pennsylvania. The bill does not include an exception in the case of rape or incest.

Pa. lawmakers introduce bill to ban abortion after fetal heartbeat is detectedThat’s more extreme than an antiabortion bill that passed both chambers of the legislature in 2017 and would have both changed the cutoff to 20 weeks (except in cases of medical emergency) and ban a technique called “dilation and evacuation,” which involves doctors using forceps to remove a fetus. That procedure is uncommon and most often used in cases of medical necessity or fetal deformity. Wolf vetoed the legislation.

Department of Health statistics show more than 85% of abortions in the state are performed at 13 weeks or less.

Beyond the potential for changing the law itself, simply the introduction of the legislation rings alarm bells and creates calls to action on both sides of the issue. (After Alabama this spring enacted an extreme antiabortion law, abortion-rights advocates reported a record-breaking surge in donations.)

Does this really have a shot?

If it makes it to the governor’s desk, he’ll veto it. Some supporters of antiabortion legislation had suggested in 2017 that a veto override could be possible, as the state’s Pro-Life Caucus spans both sides of the aisle.

But if there wasn’t a veto override on a 20-week ban, a ban that cuts off abortion access at as early as six weeks is less likely.

The bill could also find the same fate as a handful of other antiabortion bills that have been introduced over the last several years, including a bill last year that banned abortion after a prenatal diagnosis of Down syndrome: It could die well before it reaches Wolf.

Heartbeat bills introduced in both chambers will head to committee next. Hearings haven’t yet been scheduled (though the 2017 bill passed without a hearing.)

So why even introduce this?

Critics, including Planned Parenthood Pennsylvania Advocates executive director Ashley Lenker White, have called the measure a waste of time. She questioned why lawmakers would draw attention to a bill that’s “been very clearly blocked as unconstitutional.”

“There’s really good legislation that’s not being attended to while this politicized nonsense is getting batted around,” said Susan Frietsche, a senior staff attorney at the Women’s Law Project.

The bill’s prime sponsors, Rep. Stephanie Borowicz (R., Clinton) and Sen. Doug Mastriano (R., Franklin), didn’t respond to a request for comment Tuesday.

But they were following through on promises to get Pennsylvania into the national push to overturn or weaken Roe v. Wade. Antiabortion advocates see potential in legislation like heartbeat bills, which could serve as incremental challenges to the 1973 Supreme Court decision that legalized abortion.

Their thinking is that even though sponsors of the bill know it will be challenged in court, split-decisions at the circuit court level could make the Supreme Court more likely to take up a case.

“We will now have the upper-hand in Pennsylvania and across the nation,” Borowicz, a freshman, said during a news conference announcing the proposal Monday. She added that she’s corresponded with Janet Porter, an activist who wrote the nation’s first heartbeat bill, “and she believes the heartbeat bill is the dagger into Roe vs. Wade.”

Porter’s bill was first introduced in Ohio in 2011 (and vetoed twice by Republican governors there), but has since gained momentum, especially this year as antiabortion activists take aim at Roe under a Supreme Court that’s shifted farther to the right. Justices Neil Gorsuch and Brett Kavanaugh, both nominated by President Trump, are considered two of the most conservative jurists on the bench, which leans 5-4 in their favor.

What would it really take for abortion to be illegal in Pa., N.J.?Five states passed heartbeat bills this year, but judges in many of these circumstances have placed temporary injunctions on the laws, meaning they won’t go into effect while being argued in court. This month, a federal judge in Atlanta wrote that courts have repeatedly ruled "under no circumstances whatsoever may a state prohibit or ban abortions at any point prior to viability,” which is generally considered 24 to 28 weeks.

It seems unlikely a Pennsylvania abortion law will make it to the Supreme Court in the near future -- dozens of abortion-access bills are already in the pipeline. The court this month accepted a case out of Louisiana, which passed a 2014 law requiring doctors who perform abortions have admitting privileges at nearby hospitals. The court in 2016 struck down a similar law in a 5-3 decision, with now-retired Justice Anthony M. Kennedy siding with the court’s liberal justices.

How would a SCOTUS ruling impact PA?

A lot would have to happen for abortion access to disappear in Pennsylvania, and if it were to happen, it would take awhile. Experts in the Supreme Court say these cases can often take three to four years to make their way to the Supreme Court.

If Roe were to be overturned, that decision probably wouldn’t itself criminalize abortion, it would simply leave it up to states to regulate.

From there, both chambers of the legislature would have to pass an antiabortion measure -- could happen if the current makeup remains the same -- and then they’d need either 1. a governor willing to sign it or 2. the support of two-thirds of each chamber to override the veto.

Frietsche said abortion restrictions in other states, particularly Ohio and West Virginia, could have an impact on Pennsylvania providers as more women seek abortions outside their home state.

Right now, Pennsylvania does have some abortion restrictions on the books, including a 24-hour waiting period and a ban on the use of public funding for abortion procedures except in cases of life endangerment, rape or incest.

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