Judge Who Struck Down Abortion Ban Calls Unborn Baby’s Heartbeat “Cardiac Activity”

Opinion   Walter Weber   Jul 11, 2019   |   10:25AM    Columbus, Ohio

Ohio recently enacted a pro-life law entitled the Heartbeat Protection Act. (Full disclosure: I helped draft the bill that was adopted.) The new law amends and modifies an existing requirement that abortionists test to see if the baby in the womb has a heartbeat and to tell the expectant mother the results of that test. Other provisions in the new law create remedies for post-abortion women and add valuable abortion reporting and recordkeeping requirements. The most controversial new provision declares that if a heartbeat is found, the baby is legally protected from abortion – i.e., it is a crime to abort a baby with a heartbeat (absent a serious threat to the mother).

Unsurprisingly, abortion providers challenged the Ohio Heartbeat Law in federal court, claiming the ban on abortions after the detection of a heartbeat violate the teachings of Roe v. Wade and Planned Parenthood v. Casey, two important (but badly mistaken) Supreme Court decisions on abortion. And unsurprisingly, a federal district court issued an injunction halting enforcement of the law in Preterm-Cleveland v. Yost.

What was surprising, to me anyway, was how the court’s opinion was written. Abortionists could hardly have asked for more if they had drafted the judge’s decision themselves. Why do I say that? Let’s look at how this ruling follows what we might call the NARAL/Planned Parenthood Instruction Manual:

1.      Don’t call it “abortion.” Call it “abortion care.” The word “abortion” has ugly connotations. “Care,” however, has a positive feel. Apparently the abortion lobby did some polling and decided that it was better to pitch abortion as a form of “care” (as with “reproductive care”). So starting some years back, abortion proponents began using the phrase “abortion care” in place of “abortion” whenever they could. (We called the abortion apologists out on this in a brief we filed back in 2014.)

This terminology switch has been phased in over the years. Compare the 2015 International Planned Parenthood Foundation propaganda guide “How to talk about abortion” (no mention of preference for the term “abortion care”), with the 2018 version (“abortion care” listed under “Prefer” category of terminology on p. 16) and is now becoming the norm in pro-abortion circles. In his opinion enjoining the Ohio Heartbeat Law, U.S. District Judge Michael R. Barrett uses the term “abortion care” at least four times in the first 4-1/2 pages of his opinion, even where the phrasing is blatantly inaccurate. For example, on page 5 he writes that the Heartbeat Protection Act “will prohibit almost all abortion care in Ohio.” But of course, the Act does not prohibit any care – disinfecting, monitoring vital signs, anesthesia, helping with post-abortion recovery – only the abortion is prohibited.

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2.     Don’t call it a “heartbeat.” The slogan, “Abortion stops a beating heart,” has long been an effective way to highlight the injustice and inhumanity of abortion. The Ohio Heartbeat Protection Act directly incorporates this notion – that abortion stops a beating heart – into law . . . which the abortion proponents hate. But they can’t avoid the centrality of heartbeats to the law and thus to their constitutional challenge. In fact, the pro-abortion challengers admit that a heartbeat can be detected as early as six weeks of pregnancy. So a cardinal rule is to find some way of saying “heartbeat” without using that word. Thus, even though the law itself says “heartbeat,” Judge Bennett uses only the far more technical jargon, “cardiac activity” (pp. 2-4, 8).

3.     Don’t even admit there is a “heart.” Judge Bennett does not even refer to the organ producing the “cardiac activity” as a heart. Instead, he refers (p. 3) to “cells that form the basis for the development of the heart later in gestation.” In other words, there’s no heart there, just some “cells” that are the “basis” for what will “later” develop into a heart. (Never mind that those cells are pumping blood!)

4.     Give the pro-abortion side more than it is entitled to get.

     a. The challengers requested a preliminary injunction against the heartbeat law. To get it, they must show a “likelihood” of success in the lawsuit. All Judge Bennett had to do to grant their wish was find such a “likelihood.” But instead, he declared that the challengers “are certain to succeed” (p. 6). Has he prejudged the case?

     b. The challengers argued that the ban on post-heartbeat abortions violated Roe and Casey. But did Judge Bennett enjoin the section of the Act banning such abortions? No. Instead, he enjoined the entire Act (p. 12), with no discussion or even hint that there is anything wrong with any of the many other provisions the Act contains.

Thankfully, the case is not over. But this is not an encouraging start.

Here at the ACLJ, we have already offered extensive legal consultations on the drafting of this pro-life law. We stand ready to assist in the defense of this case as well and plan to file as friend of the court in opposition to the pro-abortion challengers.

LifeNews Note: Walter Weber is an attorney with ACLJ.