There are a number of so-called “pro-life” bills throughout America at the state and national level that seek to regulate or push back the incidence of abortion by banning a certain type of abortion procedure, such as dismemberment or partial birth abortion. There are also “pain capable” bills that ban abortion once a preborn child is capable of feeling pain. The most popular type of regulatory bills are the incremental bills that ban abortion after viability or what some call “late term abortion.” Some put this at 20 weeks, while others seek to go further to twelve weeks or even six to eight weeks.
The recent Florida House Bill 235 or “detectable heartbeat bill” is one of these incremental bills that have support from various pro-life groups.
Personhood Florida cannot support this bill for a variety of reasons. This might come as a surprise to some who believe it would eliminate the vast majority of abortions. Simply, Personhood Florida’s goal is to establish that all human beings regardless of their stage of development have a God-given right to life.
As President Trump recently stated this in no uncertain words in his 2019 State of the Union address.
There could be no greater contrast to the beautiful image of a mother holding her infant child than the chilling displays our nation saw in recent days. Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments before birth.
These are living, feeling, beautiful babies who will never get the chance to share their love and dreams with the world. And then, we had the case of the governor of Virginia where he stated he would execute a baby after birth.
Ironically, the president then provided a good illustration of the logical disconnect in a lot of current “pro-life” initiatives.
To defend the dignity of every person, I am asking the Congress to pass legislation to prohibit the late-term abortion of children who can feel pain in the mother’s womb. Let us work together to build a culture that cherishes innocent life. And let us reaffirm a fundamental truth — all children — born and unborn — are made in the holy image of God.
If we can say in one breath that life begins at conception because we are all made in the image of God – an ideal that Personhood Florida seeks to codify in constitutional language – and then call for a partial ban on abortion after 20 weeks, we undermine our own core beliefs. If we then load up the language of such bills with exceptions designed to pass the muster of higher court rulings that strike down such laws the next day, then we merely show that we do not even believe our own rhetoric.
What’s good about the heartbeat bill
Before getting into the many reasons why Personhood Florida cannot support Florida House Bill 235, I wanted to point out two things about the heartbeat bill that are good and actually represent an improvement over past efforts to regulate abortion in our state.
1. It uses correct, biblical language to describe the “unborn child.” The original draft of the bill had the word “fetus” throughout, but in revision it was changed to “unborn child.” This is important to us in Personhood because we want to use biblical language. It is recorded in the Gospel According to Luke that Jesus, while still in the first trimester, perhaps only a few weeks or even a few days after His conception, was recognized John the Baptist, who was called a “babe” in the womb.
And Mary arose in those days, and went into the hill country with haste, into a city of Judah; And entered into the house of Zacharias, and saluted Elisabeth. And it came to pass, that, when Elisabeth heard the salutation of Mary, the babe leaped in her womb; and Elisabeth was filled with the Holy Ghost (Luke 1:39-41).
It’s important to note here that the word for “babe” is the Greek word, brephos. This can mean a young child, a baby or a preborn baby. It makes no difference with the Lord. All children — born and unborn — are made in the holy image of God. If our president is bold enough to speak that, and our own Florida Constitution affirms that our right to life and liberty comes from “Almighty God,” we can certainly use that language in our legislation.
2. The language for the “life of the mother” exceptions, although not without several problems, is better than in previous “pro-life bills.” The bill has several long clauses describing what a doctor must do in a medical emergency. In summary, the bill says the following.
If a termination of pregnancy is performed during viability or after a fetal heartbeat has been detected, the physician performing the termination of pregnancy must exercise the same degree of professional skill, care, and diligence to preserve the life and health of the unborn human being that the physician would be required to exercise in order to preserve the life and health of an unborn human being intended to be born and not aborted. However, if preserving the life and health of the unborn human being conflicts with preserving the life and health of the woman, the physician must consider preserving the woman’s life and health the overriding and superior concern.
Ignoring several problems with this language, which I deal with below, the bill does two things that are an improvement.
First, it defines an “abortion” as “the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead unborn human being.”
Thus an abortion would not include an operation with the intent to save the mother and the child that unintentionally results in the death of one or the other. It would not include an operation that is done in a life-threatening situation, such as necessary surgery on woman who has had a “tubal pregnancy” and is in danger of death without emergency intervention. It would obviously not include a D&C after a spontaneous miscarriage, a birth by caesarean section, or surgery “to remove a dead unborn human being.”
Second, it classifies the above as a pregnancy “termination” procedure, but not as an intentional “abortion.” According to this bill, abortion has to do with the “intent” to kill a preborn child. This eliminates the confusion among some medical professionals and pro-abortion advocates who say that banning abortion prohibits life-saving care.
What’s wrong with the heartbeat bill
1. The bill defines an “unborn human being” as “an individual organism of the species Homo sapiens from fertilization until live birth.”
While this is certainly true, the Florida Constitution, as well many other state constitutions and the Declaration of Independence, define the right to life as originating from “Almighty God” or our “Creator” or similar names describing our Lord. We don’t have the right to life because we are a species superior to animals. We don’t have the right to life because we can feel pain or have a heartbeat that can be detected by medical science. We have the right to life because we are created in the image of God. The language of our laws ought to reflect this biblical truth that our founding documents affirm.
2. The heartbeat bill contains contradictory language describing when life begins.
The rationale for protecting preborn children is given in the bill that the state of Florida has a legitimate interest in “protecting …. the life of the unborn human being who may be born.”
WHEREAS, as many as 30 percent of natural pregnancies end in spontaneous miscarriage, and
WHEREAS, fewer than 5 percent of all natural pregnancies end in spontaneous miscarriage after the detection of fetal cardiac activity, and
WHEREAS, more than 90 percent of in vitro pregnancies do not survive the first trimester when cardiac activity is not detected in the gestational sac, and
WHEREAS, a fetal heartbeat, therefore, is a key medical predictor that an unborn human being will reach live birth, and
WHEREAS, cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac, and
WHEREAS, the State of Florida has a legitimate interest from the outset of a pregnancy in protecting the health of the woman and the life of the unborn human being who may be born …
We must realize that laws not only prohibit criminal behavior, but they are also instructive. What the bill does is to send the message that human life is valuable when an organism of the species Homo sapiens has a detectable heartbeat and therefore “may be born.” It implies that the state of Florida does not have a legitimate interest in protecting human life prior to the time when a preborn child has a heartbeat when “as many as 30 percent of natural pregnancies end in spontaneous miscarriage.”
That being said, if the heartbeat bill were really enacted, it would end practically all surgical abortion. A fetal heartbeat is detectable at 22 days (three weeks) with a highly sensitive ultrasound or at eight weeks with a stethoscope. Few women actually realize they are pregnant prior to six to eight weeks. Few abortion clinics will perform an abortion on a pregnancy that is not at least six weeks from the last missed menstrual cycle (which is actually eight weeks). In reality, the heartbeat bill would end all abortion after this time. Further, medically necessary surgeries needed to save the life of a mother that end with pregnancy termination are rare. It’s estimated even by pro-abortion advocacy groups, such as the Alan Guttmacher Institute, that .08 percent of these pregnancy terminations (or less than one in a thousand abortions) are performed in these “hard cases” in the state of Florida each year.
While it would be a good thing to stop the surgical abortion industry, it would not stop the operation of abortion clinics that prescribe early abortifacient drugs. Since virtually no surgical abortions are performed prior to six weeks, it sends the message that life begins with a human being that has a heartbeat. This begs the question. If ending surgical abortion, which is the “cash cow” of the abortion industry, is a good thing, then why not go the whole way? What if there were a companion bill that banned prescription and over-counter sales of drugs that are intended to be used as abortifacients? Why go as far as a detectable heartbeat and no further?
This is the reason why I support establishing Personhood in our laws over abortion regulations. Personhood Florida advocates that all human beings must be recognized and protected because we are made in the image of God. Simply, the Florida Personhood Amendment initiative states:
The God-given right to life of every human being at any stage of development must be recognized and protected.
The Personhood Amendment avoids confusing legal language and exceptions that actually contradict our message that each human life begins at conception/fertilization as a unique creation in the image of God.
3. The life of the mother clause in this bill says the doctor must operate to save the life of the mother and the preborn, but complicates the matter by adding the words “and health.”
Preserving both the life and health of both the mother and the child is the correct ethical view. At first glance, it’s not a terrible clause by itself. In isolation of the other implied and explicit exceptions, there is not a huge problem here. Of course, the “exception” to save the life of both patients doesn’t have to be stated in law because this is what doctors do routinely. They try to save lives.
Above I wrote that one good thing about this bill is that it does not use the language that “abortion is permissible for life and health of the mother.” What it does instead is describe what should happen in a life-threatening situation. There would be nothing wrong with a law that by itself explained what a doctor must do to preserve the life of both the pregnant mother and the child.
I personally think this comes close to being good language, but the heartbeat bill has a big problem. The heartbeat bill both confuses and negates its own stated ethical position.
The first and foremost problem is that it also adds the words “and health.” The word “health” can be interpreted in a number of different ways. It is common in late term abortions for women to claim that their mental health is such that they would consider committing suicide if forced to deliver a baby. In fact, it is common for abortion doctors to “coach” women to sign such affidavits so that they may skirt the law in the state of Florida and perform late term abortions in an outpatient setting.
I am all for protecting doctors who truly protect the sanctity of life and try to save both the mother and the child. If a life saving procedure results unintentionally in the death of one or the other the doctor should not be criminally culpable. This can be in some law or precedent. It all comes down to the word “intent.” So whether you call it an “exception” or not, this is not a conundrum. The doctor must operate to save both lives doing everything that is medically possible within our current medical knowledge.
However, it is unclear what this bill is actually saying. Would an emergency procedure be performed on a woman who has any type of health issue? The bill doesn’t define what types of health problems this would entail.
Here lies the second and greatest problem. The “health of the mother” exception opens up the possibility to legally abort any preborn child who is not viable under the guise of a “health” exception. Thus it shifts quickly from being a true “heartbeat bill” to a “viability bill.”
4. There is a “use of public funds prohibited” section that has a rape or incest or life and health of the mother exception.
This exception clause literally says that an “abortion” in the case of rape or incest, or to preserve the life or health of a pregnant woman can take place using public funds.
USE OF PUBLIC FUNDS RESTRICTED.— A state agency, a local governmental entity, or a managed care plan providing services under part IV of chapter may not expend funds for the benefit of, pay funds to, or initiate or renew a contract with an organization that owns, operates, or is affiliated with one or more clinics that are licensed under this chapter and perform abortions unless one or more of the following applies:
(a) All abortions performed by such clinics are:
1. On unborn human beings that are conceived through rape or incest; or
2. Are medically necessary to preserve the life of the pregnant woman or to avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman, other than a psychological condition.
This is extremely confusing if not contradictory. If the doctor is really trying to save both lives, then why does it matter if a rape was committed or public funds, such as Medicaid, are used? First, this not an “abortion” in the usual sense of the word or as defined earlier in the bill. It’s an emergency caesarean-section or some other procedure designed to try to save both lives. Second, why create a rape exception? Why would public funds be available in the case of a rape to try to save the life of an unborn child, but not a child conceived through consensual relations?
So the language is problematic in that it is confusing and contradicts the ethical stance laid out previously in the bill. This section is either a badly botched oversight or some type of legal sophistry that defies common sense.
5. The bill has several pages of regulations on the abortion clinics that might still operate in the cases when surgical abortions would be performed.
While it’s not unusual for pro-life bills to turn into “omnibus packages,” I found this to be one of the stranger aspects of this piece of legislation. Let’s think this through. Would a woman go to an outpatient abortion clinic in a life-threatening situation? No, they are going to go to a hospital. So the bill is odd in that it hyper-regulates an industry that would effectively be put out of business in about 99% of cases by not allowing surgical abortion. It sends the message that surgical abortion centers would still operate under a variety of restrictions and regulations – many of which are already in place, but not always enforced.
6. Finally, the penalties for committing an abortion on an “unborn human being of the species Homo sapiens” is a “felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”
To clarify, a third degree felony is the lowest level felony punishable under Florida statutes “by a term of imprisonment not exceeding 5 years.”
The third degree felony language contradicts the statement that this is an unborn human being. It’s not consistent with other homicide statutes.
I personally am not against the idea of putting all surgical abortion centers out of business under penalty of homicide laws and then dealing with the abortifacient drug issue in other legislation. The problem with abortifacient drug legislation is that prosecution would be difficult under homicide statutes for a variety of reasons. But surgical abortion can be treated as homicide or first-degree murder.
Personhood organizations cannot support heartbeat bills
In summary, Personhood Florida and all affiliates of our national group, Personhood Alliance, cannot support heartbeat bills. The language of this bill exposes inconsistencies in thinking, is self-contradictory and sends the message that certain abortions are permissible among preborn children of the species Homo sapiens who do not have a detectable heartbeat. A better approach is to combine a Personhood amendment or law with legislation that protects human life.
A Better Way to End Abortion in Florida
Personhood advocates need to understand two important realities about state abortion laws.
First, as long as states think they must follow Roe v. Wade as established law, there is no real restriction on abortion. Roe v. Wade together with Doe v. Bolton made it possible to kill a child in the womb through all nine months once certain criteria are met. The biggest “loophole” is the “health of the mother” in Doe, which includes “mental health.” So legally all a woman has to do is sign a piece of paper saying she has had thoughts of suicide and the doctor can concur. In fact, women seeking late term abortions are often coached to do this. Some states have further restrictions saying late term abortions must be done in a hospital setting or through a doctor that has hospital privileges. This is why putting “restrictions” on abortion while kneeling before the altar of Roe as “settled law” can never work. “Chipping away at Roe” is ineffectual as long as this “mental health” exception is followed.
This is the reason why I haven’t flown into hysterics over New York’s new “barbaric” abortions laws. This is already the case in every state throughout the country as long as we accept the judicial fiat “laws” of Roe and Doe.
Second, states can right now end abortion legally by doing three things.
1. Write into law or as an amendment that the life of all human beings at any stage of development must be recognized and defended. Some states actually have such Personhood language in their constitution and laws already. But too many people falsely believe Personhood is ineffectual under Roe.
2. Pass uncompromised fetal homicide laws or remove the exceptions in fetal homicide laws that protect abortionists. There have been people tried and convicted of murder for killing an unborn child. A few years ago, Ariel Castro in Cleveland, Ohio was convicted of first degree murder for forced abortions on girls he had kidnapped. People who deceptively give pregnant women abortion pills can be tried for murder. There are many “double homicide” cases involving preborn children and their mothers. There is also a federal fetal homicide law that covers all 50 states. The problem is that these laws all have an exception that protects abortionists from prosecution.
3. Ignore or defy federal abortion-related cases that contradict state laws and state constitutions. Many states have “tenth amendment” resolutions and/or language in laws that command state officials to uphold state law over federal law.
Here in this video, Idaho state representative Heather Scott is doing just this. This needs to be the paradigm shift that all “pro-life” legislators throughout the country will adopt.
Please also see the links for The United States of America 2.0: The Great Reset. This is short primer on doctrine of nullification, which has been one of the foundational tenets of the Personhood movement since its beginning. You may either order copies or I have posted all the articles that make up the booklet online for free.