Fetal Heartbeat Laws Defy Science, Religion and Law...

...and Violate the Constitution, too.

The laws against abortion that include a “fetal heartbeat” provision defy science, religion, and the law. There is no fetal tissue, no heart, and no heartbeat at the early stages of pregnancy to which these laws apply. Women are being forced to carry pregnancies based on a scientific lie.

No religious or societal consensus exists on when life begins or whether abortion is an allowable health choice. Women are forced to carry pregnancies based on the beliefs of one religion. Basing a law solely on the beliefs of one religion violates the Establishment Clause of the Constitution, because it cements into law the belief of that one religion that is contrary to the beliefs of many other religions and nonreligious people. It also violates the Free Exercise clause of the Constitution because people of any other religion or none are prohibited from practicing their religion as they see fit.

What do the Laws Say?

The definition in the Texas law SB 8 says: (1) "Fetal heartbeat" means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.

The statute at issue in the Dobbs v. Jackson Women’s Health case (597 U.S. __ 2022) (Miss H.B. 1510) says: SECTION 1. (1) This section shall be known and cited as the "Gestational Age Act." (2) Legislative findings and purpose. The Legislature makes the following findings of fact and incorporates them herein by reference: (b) (i) Medical and other authorities now know more about human prenatal development than ever before including that:1. Between five (5) and six (6) weeks' gestation, an unborn human being's heart begins beating.

That is a lie. There is no “fetal heart within the gestational sac” at such an early stage of pregnancy, and it is factually inaccurate that at five- or six-weeks gestation a heart begins beating.

When Does Human Life Begin?

The question is not just “life” but “human life.’’ All cells have life, including cancer cells. The issue is when a human life possesses a moral claim over and above other kinds of human life… e.g. when does the fetus have a better claim to life than the already living mother?

Various religions have determined different starting points. In thirteen places, the Christian Bible says that man becomes a living person when he has the breath of life — not when a sperm inserts itself into an egg, but when the person can breathe on their own. Three such references are in Genesis 1:30 2:7, 7:22; three are in Job 32:8 that says, “the breath of the Almighty makes him understand,” 33:4 that says, “the breath of the Almighty gives me life,” and 27:3 that says man has life when the breath is in him and the spirit of God in his nostrils.

Breath is far more of a determiner of life than egg puncture.

Two references are found in Ezekiel 37:1-18, which describes how God brings dead men to life: “cause breath to enter you, and you shall live...” Ezekiel 37:10 describes an army that came to life when breath came into them.

Isaiah also has two references in 42:5, that describe God as giving breath to the people on earth, and 57:16 discussing the breath of life. Psalm 146:4 tells us that when breath departs, a person is dead. In the New Testament, John 20:21-22 has Jesus breathing on the people to receive the Holy Spirit or soul.

It is also clear from the Bible that abortion was not an issue. See Exodus 221:22-24. If two men get into a fight and hit a pregnant woman so that she loses her pregnancy, “but there is no harm,” then the one who hit her only gets a fine. But if there is harm to the woman’s living body, then it’s an eye for an eye. The loss of the fetus is “no harm.”

Number 5:11-31 tells us how a priest adjudicates a dispute about adultery. If the woman says she’s innocent, she must drink a potion that brings on the “curse” (5:19) (i.e. menstrual bleeding). If innocent, the potion will have no effect. If guilty, the potion will cause an abortion. (22) Thus it’s a priest who brings about an abortion.

In Jewish religious law, there is no consensus about when human life begins among scientists, philosophers, ethicists, sociologists and theologists. They say the Bible makes no direct reference to the beginning of human life, while the Talmud gives full status of humanness to a child at birth and rabbinical writings say that humanness is at the 13th postnatal day of life. (The beginning of human life; Status of embryo. Perspectives in Halakha (Jewish Religious Law), Joseph g. Schenker, J. Assist. Reprod Genet. 2008 Jun; 25(6): 271–276. Published online 2008 Jun 13. doi: 10.1007/s10815- 008-9221-6).

Islamic theorists discuss that while biomedicine may be able to tell when a fetus can survive outside the mother, that does not answer the question of what constitutes a human being or how a potential life is considered versus an actual life (the mother). “In the Islamic tradition, this point is generally recognized as 120 days after conception, at which time, according to the Hadith, the process of ‘ensoulment’ occurs; that is, the time in which the soul (rūḥ) enters the fetus post-conception.”

This conception is not based solely on biology or medicine but on the Qur’an and Hadith – foundational texts of Islamic law. Thus it is strictly a religious definition that is not allowed to be enacted into law because of the Establishment Clause. Prior to that time, the cells may be a living organism but is not a living human being. (3 Bill of Health: Examining the Intersection of Health Law, Biotechnology, and Bioethics, Harvard Law , Islam and the Beginning of Human Life December 8, 2017 ylenfest Bioethics, Personhood, Philosophy, Reproductive Technology

That this is very much a religious and mostly Catholic idea can be seen in the legal documents filed with the courts in Dobbs. The U.S. Conference of Bishops filed an amicus. Their justification is backed up by Pope John Paul II, Encyclical Letter Evangelium vitae, ¶ 58 (1995). The Second Vatican Council speaks of abortion, together with infanticide, as an “unspeakable crime.” (Pastoral Constitution on the Church in the Modern World (Guadium et spes), ¶ 51 (1965).)

The only support for the Catholic view is them quoting themselves. Lawyers call that ipse dixit and it has no decisional value.

In contrast, Catholics for Choice also filed an amicus in Dobbs with 54 different religious groups supporting it. They take an opposing point of view that religious traditions do not share a uniform view of when life begins; that many religious traditions affirm the woman’s moral right to decide for herself; and that religious traditions affirm that the most vulnerable who are disproportionately harmed need the choice most.

The variety of religious opinions vary from the moment of conception, or sometime during pregnancy (at 40 days for males and 80 days for females), or at “quickening,” or at 120 days, or at birth, or at first breath, or sometime after birth.

Given that, the best position is that women themselves have the moral right to make that decision based on their own belief. Anything else is a violation of the First Amendment Free Exercise clause.

The Catholics for Choice brief states baldly that the Catholic ban is based on neither scientific research nor religious consensus. The ban is in accordance with some religions and in disagreement with others. Contemporary Catholic scholars say even the Catholic church has not defined when life begins.

Because no one agrees, a woman must be free to decide for herself. Refusing to allow a woman to do so violates diverse religious views, establishes one religion, and prohibits free exercise all in violation of the First Amendment.

Other religions also filed dueling amicus briefs in Dobbs with Jewish organizations on both sides; Lutherans and Protestant groups for the ban; and Muslim, Presbyterian, Humanist, and atheist groups opposed. No societal consensus exists and thus the decision must be left to the individual with her own moral code.

Dr. George Tiller, a man who was murdered more than a decade ago, was a devout Lutheran who considered his abortion practice his spiritual calling. Dr. Ben Brown tweeted that his work is an expression of his Quaker values.

Nationwide, faith leaders like Rev. Dr. William J. Barber II of the Poor People’s Campaign support reproductive justice as part of their religious mission. Those politicians who claim religion supports their rationale in fact create increased rates of maternal death and mortality while using religion as a substitute for policy and science. One only needs to look at Mississippi, with one of the highest rates of maternal and child mortality, to see perfectly well that the concern is not the life or death of a child or its mother.

THE STATEMENTS OF POLITICIANS VERIFY THAT THE LAWS ARE BASED SOLELY ON THEIR PERSONAL RELIGIOUS BELIEF.

Politicians who were involved in passing the legislation in Mississippi make it clear that it’s all about their own religion. Rep. Becky Currie, R-Brookhaven, MS said during debate on Miss. H.B. 1510 that, “I do believe that life is precious and children are a gift from God. ... And if you have a child and don’t want it there is someone else who does want it.” (Abortions banned after 15 weeks by House, Mississippi Today, Larrison Campbell, February 2, 2018)

In 2012, House Judiciary Committee Chairman Andy Gipson, R-Braxton, sponsored a fetal heartbeat (sic) amendment. Gipson said, “I am not God, but I serve a God who says life is in the blood. And this bill will protect those lives.” This was after 58% of Mississippi voters rejected a proposed constitutional amendment that would have defined life as beginning when a human egg is fertilized. Clearly the legislators were not acting on the will of the voters.

Legislators themselves have been brazenly candid about the religious purpose and influence on their anti-abortion legislation. When Gov. Greg Abbott signed Texas law SB 8, he provided an oft-heard reason for why the Lone Star state is effectively banning nearly all abortions: “Our creator endowed us with the right to life.”

During debate on Montana’s House Bill 136 (signed into law in April 2021), bill sponsor Representative Lola Sheldon-Galloway said on the floor of the legislature, “I stand today as a witness that this practice of infants dying because they are not wanted or not planned is an abomination in God’s eyes, and I will continue to fight for the most vulnerable.” (Zack Kaplan, Abortion-related bills move closer to governor’s desk.

At the March 2021 signing of South Dakota’s House Bill 1110, that prohibits abortion based on a diagnosis of certain fetal chromosomal abnormalities, Governor Kristi Noem said, “God created each of us and endowed all of us with the right to life.”

Arkansas Senate Bill 6, a near-total abortion ban with no exceptions for rape or incest, was signed into law in March 2021. During debate, lead sponsor Senator Jason Rapert cited the bible as justification for the bill, stating, “There’s six things God hates, and one of those is people who shed innocent blood. I’m not going to be a part of any of that.”

Similarly, in May 2019, Alabama passed a clearly unconstitutional abortion ban with no exceptions for rape or incest. In defense of the bill, co-sponsor Senator Clyde Chambliss said, “I believe that if we terminate the life of an unborn child, we are putting ourselves in God’s place.”

At the signing of the bill, Alabama Governor Kay Ivey released a statement confirming, “To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.”

Five members of the clergy were plaintiffs in support of abortion in the challenge to Georgia’s abortion statute that was decided together with Roe. (See Doe v. Bolton, 410 U.S. 179, 184, 189 (1973).

Religious engagement on all sides has been a hallmark of the controversy up to and including the numerous denominations and clergy appearing as amici on both sides in the Dobbs case.

In one judge’s mind, religion justified keeping Dred Scott in slavery:

As to the consequences of slavery, they are much more hurtful to the master than the slave. There is no comparison between the slave in the United States and the cruel, uncivilized negro in Africa. When the condition of our slaves is contrasted with the state of their miserable race in Africa; when their civilization, intelligence and instruction in religious truths are considered, and the means now employed to restore them to the country from which they have been torn, bearing with them the blessings of civilized life, we are almost persuaded, that the introduction of slavery amongst us was, in the providence of God, who makes the evil passions of men subservient to His own glory, a means of placing that unhappy race within the pale of civilized nations.

One of the Missouri judges wrote in dissent:

It is, undoubtedly, a matter to be deeply regretted, that men who have no concern with the institution of slavery, should have claimed the right to interfere with the domestic relations of their neighbors, and have insisted that their ideas of philanthropy and morality should be adopted by people who are certainly capable of deciding upon their own duties and obligations.

The decision by the Supreme Court has gone down in history as one of the most disgraceful and unjust cases in the U.S. Replace the words “men who have no concern with the institution of slavery,” with “men who have no concern with the institution of birth,” and we are at the same place 170 years later.

History of Abortion in the U.S.

Religion used to support policy and law has often supported the worst of our human rights abuses. In a precursor to the Dred Scott decision that made its shameful way to the U.S. Supreme Court, the Supreme Court of Missouri ruled on it first.12

Jessica Ravitz reminds us that abortion was an unremarkable part of life in the U.S. for well over a hundred years. Pharmacists and doctors sold drugs, and they could be obtained through the mail. If that didn’t work, women could go to a practitioner.

The first concerns about abortion in the 1850s were about poisoning not morality, religion, or politics. Until about 1880, abortions were legal until “quickening” and widely practiced. No one, including the Catholic church, took the view that life began at conception. Not until 1869 when abortions became political did the church condemn them and in 1895 even to save a woman’s life.

But then the Ccatholic church did not decide that women even had souls until 1950. The “ensoulment” of a clump of cells at conception was more important than the life of the woman, who had no soul. But since fifty percent of those clumps of cells became females, when did they lose the “ensoulment” they had when conceived?

The pressure to regulate abortions came at that time from the medical establishment that wanted to cement their role in medicine and keep out government regulation but —more importantly — keep out women.

Physicians wanted power to control medical practice and take away the power of midwives and homeopaths. Women were agitating to get into medical school specifically to work on obstetrics and gynecology. This the male doctors did not want.

The American Medical Association pushed for state laws to restrict abortions and in 1873 when the Comstock Law passed, it banned mailing abortion drugs. The Comstock Law is being used again today to attack mailing of abortion pills.

In addition to patriarchy, nativism was another political reason to try to prohibit abortions among white women whose birth rates were dropping while those of immigrant women were rising. This led to forced sterilizations of Blacks, Hispanics, and those labeled mentally deficient.

The author sought to get her tubes tied in 1970 in Los Angeles and was flatly refused by three doctors while at the same time in the hospitals just down the street, coerced sterilization was occurring to Black and Hispanic women. That same political reason was voiced recently in Oklahoma by a representative who said that if white women would have more babies, they would not have to have immigrant workers to do the jobs.

When abortion was made illegal, the abortion rate did not decrease. In fact, it even increased at times, e.g. during the depression. Specialists passed out business cards and opened clinics because abortion was an economic issue.

In the 1950s and 1960s, the estimated number of illegal abortions ranged from 200,000 to 1.2 million per year, according to the Guttmacher Institute. In 2017, the Guttmacher Institute estimated there were 862,000 abortions. So if you oppose abortion, legalize it and watch the numbers go down.

The churches in the late 1960s even set up a Clergy Consultation Service on Abortion to help women find safe illegal abortions. The Abortion Counseling Service of the Chicago Women’s Liberation Union (Jane) helped refer or provide 11,000 safe abortions. The authors took her roommate to an illegal abortion in Los Angeles and nervously waited out in the alley in the car hoping for her safe return.

A Rubella (German measles) outbreak between 1964-1965 changed the conversation about abortion because of the danger to the fetus. Likewise the Zika virus today threatens pregnancy and may have resulted in a higher abortion rate.

Compulsory Pregnancy versus Compulsory Organ Donation

Our society doesn’t practice, and indeed would be horrified at, the idea of compulsory organ donation. Yet, this is what anti-abortionists are requiring of women. Religions, philosophers, and their law-making followers, claim that women must gestate a fetus because a unique life is at stake, and gestation and birth are not always fatal to mothers, so the mother’s health and time must be sacrificed to gestation for nine months, and then birth.

If we hold to the idea that this is universally required that one human must sacrifice some bodily health so that another individual may live at all, then we should expect these same philosophers to be campaigning for universal donation of life-saving organs.

People have two kidneys. People can donate one to another person, and enable that person to live as a matter of life and death. Yet anti-abortionists do not campaign for compulsory kidney donation.

We also do not see any campaigns for compulsory organ donation after death — even though in that case, the donor would not be inconvenienced at all. We can’t even use a dead person’s organs to save a life, unless we have express written permission from them beforehand, while they were alive and of sound mind.

The belief in bodily integrity is so strongly rooted in our society that such attempts, even though they deal with a body no one is using again, face significant opposition and challenge.

What’s more, we do not even mandate compulsory blood donation even though blood donation is far less invasive than gestation for nine months followed by giving birth. So clearly, saving a life is not really the motivating factor here.

Indeed, we can’t even use someone’s individual cells (that they don’t need) without getting their express written permission. This is why the story of Henrietta Lacks is so much discussed. Cells were taken from her without her permission while she was receiving free cancer care at Johns Hopkins.

These cells had the amazing quality of being able to keep alive, and multiply in the laboratory, over many years. They became known as HELA cells and were (and are) a workhorse in microbiology. The Sabin and Salk polio vaccines were developed involving the use of HELA cells. The polio vaccines save millions of lives.

But neither Lacks nor her family were compensated for the cells that were taken – though much money was made. It is no longer legal to take a person’s cells and use them for research, without their informed consent, even though using a sample of someone’s cells does not harm them at all.

Anti-abortionists may say that the reason for their stance for being anti-abortion, but not in favor of compulsory organ or blood donation is because the woman is in some way responsible for the existence of the fetus. So is the father, yet he bears zero responsibility.

If anti-abortionists really think that it’s a matter of responsibility towards any beings which you have had a part in creating, then they should be in favor of compulsory blood and organ donation for all fathers, regarding their offspring—children and grandchildren.

Do we see any campaign that fathers should be required to donate their own living tissue towards saving the life of one of their progenies for all the rest of their lives? Do we see this with sperm donors? No, because the “responsibility” of which these religious writers pontificate only falls on the woman as a matter of punishing women for having sex or being raped.

Philosopher Judith Jarvis Thomson described a person waking up next to a famous concert violinist, who, while that person slept, was ‘plugged into’ the kidneys of the sleeping person to compensate for the violinist’s own failing kidneys. While unplugging herself will cause the death of the violinist, Thomson points out that we agree that the person has no legal obligation to continue to be used as a life support machine for the violinist, even if only for nine months.

Similarly, any rights a fetus might have to continued existence do not also include the right to compel others to sacrifice their body, time, and health to realize that. We may laud the person who stays plugged into the violinist, just as we may admire the person who donates bone marrow to a sick child. However, we do not legally compel anyone to do so.

Natural Law is not Scientific or Secular

“Natural Law” was developed by Thomas Aquinas,; he died in 1274, long before the development of modern science and scientific knowledge. The concept of “nature” as embodied in “Natural Law,” is based on a view of nature that is medieval in origin.

It makes as much sense for a modern nation to base its laws on this view of nature as it would have been to base our moon-shot calculations on pre-Galilean notions about the movements of celestial bodies. In fact, “natural law” that opposes abortion is unscientific nonsense. “Natural Law” would note that abortion is natural—that is, it takes place in nature every day.

The American Revolution was specifically about rejecting a foreign imperial power that wanted to control American laws, life, and politics. In the case of the Revolution of 1776 and the War of 1812, the foreign imperial power was the British Empire. Embedding Catholic Church doctrine in our law is the same.

The Catholic Church is an imperialist power just like any other. Its line of succession is not based on genetic relationship, but it has an emperor (the Pope) and nobles (the Cardinals). It extends its imperial grasp all over the world, seeks to control people all over the world, and levies taxes (tithes) all over the world. It goals are self-preservation, preservation of its privilege, and enriching and empowering itself, none of which coincide with the idea of democracy.

The whole nonsense about “protecting” women stems from a religious belief that women have no agency. Lack of agency means that women are not adults who can make rational decisions about their own fate, and so must be protected from their own bad decisions by men, such as the ones writing anti-abortion laws. The idea is that somehow, if women knew what was best, they would decide the way that these men want them to.

This point of view is exemplified by the Catholic writer Dr. Robert George, who was the principal author of the Manhattan Declaration, and who also co-authored a brief submitted for the Dobbs case. He says:

We will work, as we have always worked, to bring assistance, comfort, and care to pregnant women in need and to those who have been victimized by abortion, even as we stand resolutely against the corrupt and degrading notion that it can somehow be in the best interests of women to submit to the deliberate killing of their unborn children.

His claim to help to bring “assistance, comfort and care” to pregnant women is not reflected in his actual actions. He is well connected in Congress, the Supreme Court, and elsewhere. Yet he has never campaigned for free medical care, nor guaranteed safe housing, nor for freely available healthy food for pregnant women. Despite his considerable influence in the U.S. government, he has never used it to fulfill pregnant women’s actual needs.

His statement is a lie.

As to the idea that women are being made to “submit” to abortions, he is ignoring reality. The women to whom he is referring are twenty and twenty-first century Americans who can make their own decisions.

They are not “submitting” to abortion. They are not helpless, or mindless, enslaved people who are being forced against their will to get abortions. This view of American women is paternalistic nonsense.

American women are asking for abortions for themselves. They are campaigning for the rights of other women to get abortions. The inference that American women are helplessly submitting to abortions that they would never choose if left to their own devices is simply not the case. In fact, it is a case of men insisting that they know what is best for women, and who will force women against their will to paternalistic and authoritarian ideas of what is right for them.

Given the essential centrality of the woman to the continued existence of the fetus requiring any woman to continue with an unwanted pregnancy would represent an imposition on her rights that is impossible to square with law and morality.

Courts Have Repeatedly Found that a Fetus is Not a Person

The Supreme Court of Tennessee articulated exactly that point in a case about divorced parents arguing over the disposition of frozen embryos. (Davis v. Davis, 842 S.W. 2d 588 (1992).) After a detailed discussion of cellular division, and how one cell eventually becomes a human, the court held that the pre-embryos in that case cannot be considered persons under Tennessee law.

They are not property either but lie somewhere in the middle. Thus the parents have an interest in the nature of the ownership regarding decision making. From that, the court developed a complex progression of how to resolve the question because these matters, and people, are complex and bright lines forbidding people from actions because of someone else’s religious belief are not workable.

The answer is not easy, but the answer is not to impose one person’s belief on another.

When rights collide, they must be balanced, not blindly enforced. There is no balancing in the “fetal heartbeat” laws – no one is forcing Catholics to have abortions or take contraceptives. So their free exercise is not impinged. But the opposition are forcing their beliefs on others to carry a pregnancy to term. Thus the free exercise of those women is impinged.

In Wallace v. Wallace (421 A. 2d 134, 120 N.H. 675 (1980) the court said that nowhere did the common law give a fetus a cause of action or any other right. The law must make a policy based on what is reasonable. It is not reasonable to prohibit a procedure that eighty percent of the American public thinks should be legal in some or all situations.

When the public disagrees with a law, they simply won’t follow it with many negative repercussions. For example, few agreed with prohibition in the 18th Amendment. A large criminal enterprise grew from those who supplied the public with what it wanted, and many Americans were injured not only in the territorial fights over sales, but in drinking bad liquor.

The same happened when abortion was made illegal. A criminal enterprise grew of those who would perform such necessary procedures and many women were injured by the bad ones.

Roe v. Wade was not the beginning of abortion in the U.S.. It was the beginning of women not dying from abortion in the U.S.

The court in Wallace refused to indulge in the philosophical, theological, or medical theories about when life begins calling them irrelevant. It is a legal issue that must be decided based on legal principles – including privacy and liberty for all – that means women.

An unrelated person sought to be appointed the guardian of a fetus of a woman with disabilities who had been raped and became pregnant. Her petition was denied because the fetus is not a person. As the concurring opinion points out, there is no consensus among physicians, politicians, theologians, academics, or judges. Therefore, imposition of a particular position supported by only one religion, works a great violation of the constitutional rights of every woman. (In re Guardianship of J.D.S. v. Department of Children and Families, 864 So. 2d 534 (2004)

The “necessity defense” is not allowed in a clinic trespassing case i.e. that the trespassing is necessary to protect a third party because a fetus is not a third party. The trespassers sought to use a “higher law” to justify their actions, but this was likewise unsuccessful. The rule of law is based on the Constitution and legal rulings not on religious ideology. (Cleveland v. Municipality of Anchorage, 631 P. 2d 1073 (1981)

The Kansas Constitution provides the same protections as the federal one including a right to an abortion. The court also pointed out that one person is entitled to no greater measure of those rights than another. Thus, even if a fetus were a person, its rights would still have to be balanced with the right of the living woman. A prohibition on abortion puts the fetus’ rights above women’s rights with no consideration for balancing factors in violation of constitutional jurisprudence. (Hodes v. Nausser, MDs, v. Schmidt, 52 Kan.App.2d 274, 368 P.3d 667 (2016)

After Dobbs, efforts to change that Kansas Constitution did not prevail.

A suit against Mayo clinic was dismissed for the alleged destruction of five frozen pre-embryos. The superior court dismissed the suit because a pre-embryo was not a person. The appeals court agreed but allowed breach of fiduciary duty, breach of bailment, and contract claims to go forward. The court stated that it is not for the court to decide that a three-day-old, eight-cell pre- embryo constitutes the definition of a person. Jeter v. Jeter, 211 Ariz. 386, 121 P.3d 1256 (2005)

A Woman Can Recover for Deliberate Harm to a Fetus Without Giving it Personhood

The issue of how to protect a wanted fetus against criminal or civil injury is often cited as why a zygote needs to be called a person. This issue has also been litigated repeatedly and protection does exist without claiming that a molecule has the rights of a human.

In Hamilton v. Scott, (997 So. 3d 728 (2012) a woman sued doctors for emotional distress due to the death of a fetus that died before it was viable. The fetus died in utero and after induced labor was stillborn. The wrongful death of a previable fetus in utero was recoverable if malpractice were proven, and the case was ordered back to be tried.

Thus it is not necessary to imbue a collection of cells with human rights to obtain legal redress when wrongful actions are done. A wrongful death action can be brought if medical care is substandard. But live birth is the marking point for legal rights of a person to attach. (Nealis v. Baird, 996 P.2d 438, 1999 OK 98 (2000).

The Pennimans had embryos stored in a freezer that accidentally thawed and thus were destroyed. They sought a declaratory judgment that life begins at conception so they could sue. The court said no. An embryo not implanted has no such protections. The court stated that medical intervention is necessary for an embryo to form into a human, and it must be viable. The court said that life may begin at conception, but a person doesn’t. (Penniman v. University Hospitals Health System, 130 N.E. 3d 333, 2019 Ohio 1673 (2019)

Under English common law, the killing of an unborn child was not considered homicide. Those who claim that the doctrine of prohibiting abortion is traditional, or ancient or common law are simply lying. An action for manslaughter and vehicular homicide may be brought for Driving While Intoxicated without determining whether a viable fetus is a life. The court said it’s not a “person” under the law, but the driver still could be punished for causing its death under a different legal rationale. State of Florida v. McCall, 458 So. 2d 875 (1984)

That rationale was explained in several other cases. A man shot a woman who was 27 days pregnant and was indicted for the death of the fetus as well. The defendant tried to raise the questions of when life begins and when death occurs. The court said this is irrelevant. The state only must show that the embryo had life, not that it was a person. The philosophical and moral questions and questions of “ensoulment” and “personhood” are irrelevant. The combination of cells had life; it has life no more. He can be charged. (State of MN v. Merrill, 450 N.W. 2d 318 (1990); The People v. Davis, 30 Cal. Rptr, 2d 50, 7 Cal. 4th 797, 872 P.2d 591 (1994).

In another clinic trespass case, the defendants urged the position that from the moment of conception, the zygote has personhood so they could use affirmative defenses of protecting a person. They lost. The New Jersey Supreme Court expressly declined to determine when life begins. But the Court was clear that the mother is a person, and her health claims are given priority. The defendants did not have the right to impose their views on society by violence or any other way. (State of New Jersey v. Loce, 267 N.J. Super. 102, 630 A. 2d 843 (1991). When criminal or civil harm is done to a pregnant woman, it is not necessary to insert the religious definition of a person to obtain legal redress.

“Heartbeat” Laws are Based on Junk Science

The Scientific Integrity Act, H.R. 849, February 4, 2021, focused on the attacks on science from the religious jihadists. It reiterates what the Constitution says in Article I, Section 8 that it is the job of Congress to “promote the progress of science.” Science and the scientific process should help inform and guide public policy decisions on a wide range of issues, including improvement of public health, protection of the environment, and protection of national security.

To be admitted as evidence in a legal case, rules exist regarding the testimony of expert witnesses.

The current Rule 702 requires:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

The key case interpreting Rule 702 is Daubert v. Merrell Dow Pharmaceuticals, Inc., (509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 469 (1993) that concerned whether Bendectin, a prescription drug marketed by Dow, caused serious birth defects in two children. When hearing scientific evidence, the judge must determine that the testimony rests on a reliable foundation and is relevant to the question at hand. Reliability relates to scientific knowledge that is grounded in scientific methods and connotes a body of known facts or ideas inferred as true on good grounds.

Those grounds including appropriate testing, peer review, and level of acceptance within the relevant scientific community. “Knowledge’ must be more than subjective belief or unsupported speculation. It must be tied to fact. Thus the religious dogma that life begins at conception that is based on subjective belief and unsupported speculation is not acceptable as “knowledge” under the rule. The claimed “heartbeat” that is simply the electrical activity of any living cell is not acceptable language for the courts, legislature, or journalists to use.

The court recognized this in Planned Parenthood v. State of South Carolina (Appellate Case No. 2022-001062, January 5, 2023) when they pointed out in footnote two that the legislature wrongly used the word “fetus” to apply to all stages of gestation and that is not consistent with medical science. Conversely, the scientific community delineates a blastocyte (fertilization to three weeks), embryos (up to eight weeks gestation), and fetuses (eight to forty weeks gestation). See Fetal Development: Stages of Growth, Cleveland Clinic

The court also recognized the junk science of “heartbeat” by saying, “[T]he overwhelming consensus in the medical community is that, at this early stage of gestation, what is being recorded as "cardiac activity" is merely an electrical flickering occurring prior to the development of any chambers of the heart. See Amicus Br. of American Medical Association at 10.”

Junk science has great potential to confuse or mislead the trier of fact. That is precisely the goal of the “fetal heartbeat statutes” – to confuse the public and trier of fact – to make them think a fully formed human the size of a grain of rice resides in the womb when no such thing exists. (985 Associates, Ltd. V. Daewoo Electronics America, Ind, 945 A. 2d 381, 208 VT 14 (2008). 31Tamraz v. Lincoln Electric Company, 620 F. 3d 665 (2009).

Religious theories about the beginning of life are nothing but a hypothesis, based solely on belief (faith) and should not be allowed in evidence. (Tamraz v. Lincoln Electric Company, 620 F. 3d 665 (2009).

The beliefs cannot be tested which is why it’s called “religion” – a matter of faith not fact.

Conclusion

“Women can ‘control their reproductive lives’ without access to abortion; they can do so by refraining from sexual intercourse.” Jonathan Mitchell, one of the architects of Texas law SB 8, wrote this stunning statement in a “friend-of-the-court” brief submitted to the Supreme Court by Texas Right to Life.

Outlawing abortion isn’t the end game. Control over women is.

It is not mentioned that men should control their reproductive lives by refraining from sexual intercourse though men can initiate far more births than women.

Ruth Bader Ginsburg explained to the Senate Judiciary Committee at her confirmation hearing in 1993: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

Twenty-five years later, then Senator Kamala Harris made the point again during Brett Kavanaugh’s confirmation hearing, asking, “Can you think of any laws that give the government power to make decisions about the male body?”

Kavanaugh replied, “I’m not aware—I’m not— thinking of any right now, Senator.” He’s still not thinking of any.

Fourteenth Amendment principles of Equal Protection and Due Process, and First Amendment principles of the Establishment and Free Exercise clauses —  buttressed by privacy and liberty that are essential to a democracy — all mandate that women must be allowed to control their own bodies and hence their lives. There is no other answer.

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