Earlier this month, lawmakers in Kansas ended this session’s debate over abortion on a surprisingly low-key note. The Republican leadership shepherded two minor tweaks to existing abortion policies through the legislature, while staving off a far more contentious measure: a bill that would criminalize abortion after a fetal heartbeat can be detected, as early as six weeks into a pregnancy. The bill’s advocates say they are confident it would have passed, had it reached the floor; Kansas has strong anti-abortion majorities in both houses of the legislature and pro-life crusader Sam Brownback in the governor’s mansion. But the Republican leadership, prompted by the state’s most powerful pro-life group, Kansans for Life, used a legislative loophole to keep their more radical colleagues from attaching the fetal heartbeat proposal.
Why, in a state where nearly every strain of anti-abortion restriction has taken root with ease, are advocates of the fetal heartbeat ban facing such stiff opposition from their fellow abortion opponents? Similar battles played out in Ohio and Alabama this spring, where fetal heartbeat bills were introduced in Republican-controlled legislatures, only to be quashed by the leadership.
These struggles typify a deepening fissure in the pro-life movement. The largest and most powerful anti-abortion organizations are, by and large, incrementalists who favor precisely tailored laws designed to make abortion inaccessible—by closing clinics or creating hurdles for women seeking the procedure—but also stand up to court review. Texas’s law requiring abortion doctors to obtain admitting privileges at local hospitals, a relatively mundane-sounding constraint that has nevertheless managed to close nearly two-dozen clinics in less than a year, is an example of this type of legislation.
A growing number of anti-abortion activists are tiring of this approach. They want to ban abortion once and for all, by introducing laws like the fetal heartbeat ban that could force the Supreme Court to reconsider its decision in Roe v. Wade. Groups like the National Right to Life Committee—of which Kansans for Life is a state affiliate—and Americans United for Life contend that this strategy is dangerously quixotic. If the Supreme Court struck down a ban on first-trimester abortion, it could jeopardize the carefully constructed patchwork of abortion restrictions that do withstand court scrutiny.
Right now, the incrementalists are winning. But maybe not for long.
The fetal heartbeat bill is the brainchild of Janet Folger Porter, a Christian conservative crusader from Ohio. Porter cut her teeth in far-right politics as the legislative director for Ohio Right to Life, where she helped lobby for the country’s first partial-birth abortion ban, which was ultimately upheld by the Supreme Court in 2005. Since then, she’s staked out territory on the fringes of the Christian conservative movement. After leaving Ohio Right to Life, she moved to Florida to run the Center for Reclaiming America, a now-defunct organization that helped publicize the ex-gay movement.
Back in Ohio under the auspices of her own Christian activist group, Faith2Action, Porter was the driving force behind the introduction, in 2011, of the first fetal heartbeat ban in the country. During hearings on the bill, Porter introduced “testimony” from a nine-week-old fetus, by projecting a color ultrasound of a pregnant woman’s uterus onto a screen for the legislators. “People say you shouldn’t introduce a bill like this because it might fail,” Porter says. “Well, we might still have slavery if we hadn’t gone to extremes to end it. The only way that you’re going to overturn Roe v. Wade is to challenge it with a bill to protect children.”
Ohio Right to Life, Porter’s former employer, disagreed. “They opposed us more strenuously than Planned Parenthood did,” Porter says. In a small grassroots insurrection against Ohio Right to Life’s stance, six county chapters withdrew from the group in outrage. With Porter’s help, the dissident chapters formed the Ohio Pro-Life Coalition, which advocated enthusiastically for the heartbeat ban. The fetal heartbeat ban passed the Ohio House and might have stood a chance in the Senate, had the president—a moderate Republican on the brink of retirement—not refused to bring it up for a vote.
Since then, fetal heartbeat bans have been introduced in a dozen states, but only passed in two: North Dakota and Arkansas. Both laws were almost immediately enjoined; a federal judge struck down the Arkansas law last month. David Brown, a staff attorney for the Center for Reproductive Rights, a pro-choice organization that litigates against abortion restrictions, says that as a legal strategy, the heartbeat bans don’t stand a chance in court. “Heartbeat bans are essentially absolute bans on abortion before viability,” he says. “It really only leaves about a one-week window that a woman could get an abortion. No court is willing to go that far.”
Opposition from mainstream pro-life groups—who tend to agree with Brown’s analysis—hasn’t stopped the momentum behind the fetal heartbeat bans. Mark Gietzen, the chairman of the Kansas Coalition for Life, the group behind the state’s ban, admits that as the Kansas legislative session winds to a close, there probably won’t be another opportunity to force a vote on the issue this year. But he says fetal heartbeat legislation will remain priority one for his group, the second-largest pro-life organization in Kansas. “We have a House and a Senate who will pass it,” he says. “We have a governor who will sign it. Next year, we’re going to make it clear that this is what the people of Kansas want.”
Elise Higgins, Kansas Manager of Government Affairs at Planned Parenthood of Kansas and Mid-Missouri, says that although her organization strongly opposes the fetal heartbeat ban, she doubts that Kansans for Life and the Republican leadership will be able to keep it off the floor next year. “There’s a lot of support for it in the House,” she says. “I think it’s likely that it will at least come up for debate.”
The proliferation of fetal heartbeat legislation is due to the growing influence of a certain brand of anti-abortion activist, who sees incrementalism as a morally distasteful compromise. This far-right faction doesn’t just hold sway in Kansas; the National Right to Life Committee recently severed ties with its Georgia affiliate after the group refused to endorse an anti-abortion bill in Congress that included exceptions for rape and incest. "The bottom line is that Georgia Right to Life has protected all classes of pre-born children, regardless of how they were conceived,” said the group’s president, Dan Becker, in a press release.
In some ways, introducing far-reaching legislation like the fetal heartbeat bans can be good for abortion opponents with incremental goals, because it makes other restrictions look mild by comparison. This year, the Republican leadership in Alabama’s legislature blocked a fetal heartbeat bill but passed a law that doubled the waiting period for an abortion from 24 hours to 48 hours.
But it’s also a distraction they can’t always afford. After Ohio’s new Senate president announced that he would not move the fetal heartbeat ban—which was reintroduced last August to much fanfare, including a press conference with the Duggar family of 21 Kids and Counting fame—Porter is unsheathing her knives. Cliff Hite, a Republican state senator who co-sponsored the 2011 heartbeat ban but recently reversed his position, is facing a primary challenger this spring. Porter is leading a campaign against Hite. “What’s saddest in all of this is the pro-life groups and politicians who are content with regulating abortion,” she says. “It’s just gross. They need to stay out of the way of people who are trying to end it for good.”