Should Abortions Be Banned After a Fetal Heartbeat is Detectable? (H.R. 490)

What is H.R. 490?

(Updated March 8, 2022)

This bill — the Heartbeat Protection Act of 2019 — would ban abortions after six weeks at the federal level by making it a crime for a physician to knowingly perform an abortion without determining whether the fetus has a detectable heartbeat and informing the mother of the results, or after determining that a fetus has a detectable heartbeat. A physician who performs a prohibited abortion would be subject to criminal penalties including a fine, up to five years in prison, or both. A woman who undergoes a prohibited abortion could not be prosecuted for violating or conspiring to violate the provisions of this bill. This bill would provide an exception for an abortion that is necessary to save the life of a mother whose life is endangered by a physical (but not psychological or emotional) disorder, illness, or condition.

Argument in favor

Human life begins at conception, and a fetal heartbeat is proof of life. If a fetal heartbeat (or fetal pole activity) exists then an abortion is ending a life and therefore shouldn’t be allowed. Abortion providers who knowingly end innocent lives in violation of this bill should be punished.

Argument opposed

Fetal heartbeat bills are based in faulty science: the so-called “heartbeat” is actually cardiac activity in the fetal pole. This bill is far too restrictive, as it doesn’t provide exceptions for cases of rape and incest in which women would want to abort and would ban abortion too early in the pregnancy.

Impact

Women; pregnant women; pregnant women seeking abortions; abortion access; abortion providers; abortion limitations; and fetal heartbeats.

Cost of H.R. 490

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Steve King (R-IA) reintroduced this bill from the 115th Congress to require physicians to detect the heartbeat of and prohibit the abortion of a baby with a beating heart. When he introduced this bill in the 115th Congress, Rep. King said:

“Since Roe v. Wade was unconstitutionally decided in 1973, nearly 60 million innocent babies' lives have been ended by the abortion industry, all with a rubber stamp by the federal government. Human life, beginning at the moment of conception, is sacred in all of its forms and today, I introduced a bill that will protect the lives of voiceless innocents. My legislation will require all physicians, before conducting an abortion, to detect the heartbeat of the unborn child. If a heartbeat is detected, the baby is protected. America was founded on the concept that our rights come from God. All human persons have a right to life. How then could we confer that those rights allow the killing of a baby? I believe our most important responsibility that God has bestowed upon us is to protect innocent human life, and I will continue to dedicate my life to that responsibility.”

In a 2017 press conference, Rep. King claimed that this bill would eliminate 90% of more of abortions in the U.S. 

While defending his position of not allowing exceptions for rape and incest in this legislation at a breakfast meeting with the Westside Conservative Club in Urbandale, Iowa on August 14, 2019, Rep. King argued that humanity might not exist if not for rape and incest: 

“What if we went back through all the family trees and just pulled those people out that were products of rape and incest? Would there be any population of the world left if we did that? Considering all the wars and all the rapes and pillages taken place and whatever happened to culture after society? I know I can't certify that I'm not a part of a product of that… It's not the baby's fault for the sin of the father, or of the mother.”

Condemnation for these remarks poured in from Democrats, including those running for president, shortly thereafter. The Iowa director for Sen. Cory Booker’s (D-NJ) presidential campaign called for King to resign for his “vile” statements. Booker himself — who has endorsed King’s Democratic challenger, J.D. Scholten, tweeted, “Iowans have long deserved better than Steve King and his hateful, insulting words. He should resign.” In a statement, Sen. Booker’s campaign said, “Every Iowa leader, regardless of party, should condemn Representative King’s comments, an exercise they should all be familiar with by now, and join us in asking for his resignation.”

Similarly, Sen. Kirsten Gillibrand (D-NY) tagged King in a tweet, saying, “You are a disgrace. Resign.”

South Bend, Indiana Mayor Pete Buttigieg also condemned King’s remarks and expressed support for Scholten: 

“You would think it would be pretty easy to come out against rape and incest. Then again, you'd think it'd be pretty easy to come out against white nationalism. So this is just one more example why there needs to be a sane representative in that district, and that's why I think J.D. Scholten will be an excellent public servant for people of that district.”

Former Vice President Joe Biden tweeted, “Rep. Steve King should resign. His comments on rape and incest have no place in Congress and fuel a corrosive culture in this country around sexual assault.”

Sen. Bernie Sanders (I-VT) tweeted, “Steve King is a racist, a misogynist and a disgrace to the country. He should not be a member of the United States Congress.”

Republicans also joined in the criticism of King.Iowa State Sen. Randy Feenstra (R), who is one of Rep. King’s challengers for his seat, was among them. Feenstra spoke out against King’s remarks even though he, too, is anti-abortion: 

“I am 100% pro-life but Congressman King's bizarre comments and behavior diminish our message and damage our cause. We can't afford to hand the 4th District to Nancy Pelosi and her allies in Congress. President Trump needs defenders in Congress, not distractions. In the State Senate, I've been an effective conservative who has fought for our values and delivered conservative results. I'll do the same in Congress."

Republican House Minority Whip Steve Scalise (R-LA) called King’s comments “wrong, and offensive.” He added that they “underscore why we [the Republican Party] removed him from his committees” earlier in 2019 after Rep. King made comments defending white nationalist to the .

House Minority Leader Kevin McCarthy (R-CA) also emphasized King’s earlier removal from committees. In an interview with Fox News’ “Special Report,” McCarthy said, “This isn’t the first time I’ve had concerns with what Steve King has said. I think this just continues to show why that action was taken [to remove him from his committees].”

In an August 15, 2019 tweet aimed at Sen. Cory Booker (D-NJ), Rep. King argued that this bill protects minority lives: 

“Hey @CoryBooker My bill, HR 490, the Heartbeat Protection Act, protects more MINORITY lives than any bill moved as far in the History of Congress. What is ‘hateful’ is your support of killing little black babies, little brown babies, little Asian babies - BOTH born and unborn.”

Over the weekend after he made these remarks, King also blamed the controversy on a “misquote” by the “very active and vibrant left-wing media.” He also sought apologies from those who had attacked him — including his own party and the media — over his statements. The and Associated Press did issue corrections after they misquoted King saying that he knew nearly 200 people who oppose abortion exceptions for rape and incest. However, the also published video of King’s comments, which proves that he did make the comments about rape and incest being part of what’s allowed the human race to continue.

In a 2017 email to Teen Vogue, NARAL Pro-Choice American senior vice president Sasha Bruce expressed opposition to this bill and argued that most Americans don’t support it in principle, either: 

“[T]he GOP’s crazy obsession with banning all abortions in this country knows no end, no boundary, and no common sense… Americans are clear: they want their elected officials addressing the crises our country faces instead of wasting time and taxpayer dollars attempting to ban abortion," Bruce said. "The majority of Americans stand on the side of abortion access, and seven in 10 Americans believe abortion should remain legal and accessible. That’s not just a majority, that’s consensus, and we will keep mobilizing and organizing to ensure that all women can make decisions about their lives, bodies, and futures.”

Planned Parenthood defended abortion’s legal status in 2017 in a statement to Bustle, saying, “It's just simply outrageous that [Republicans] would look to ban abortion at all. It's legal in this country, it's a protected right, and it should remain that way." In a separate statement, Planned Parenthood’s vice president of public policy and government affairs, Dana Singiser, added: 

“[Abortion] decisions should be left up to a woman, in consultation with her doctor and her family — and never made for her by a politician. This attack on women’s health and rights isn’t just dangerous, it’s extremely out of touch with what the majority of Americans want from their representatives.”

This bill has 89 Republican cosponsors in the 116th Congress. In the 115th Congress, it had 173 bipartisan cosponsors, including 171 Republicans, one Democrat and one Independent, and didn’t receive a committee vote because then-House Speaker Paul Ryan (R-WI) thought it was too controversial and declined to bring it up for a vote. 

When a vote on this bill was blocked in 2017, Rep. King gave a House floor speech in which he decried Rep. Ryan, former House speaker John Boehner (R-OH) and National Right to Life for blocking the legislation. In his speech, Rep. King leveled the accusation — which all parties denied — that GOP leaders had formed a pact not to move any anti-abortion bills that failed to garner the support of the big three anti-abortion organizations: the Family Research Council, Susan B. Anthony, and National Right to Life.

Of Note: Heartbeat ban bills first came to prominence in Ohio in 2011 when anti-abortion activist Janet Porter and her organization Faith2Action sent thousands of heart-shaped balloons to the Ohio statehouse on Valentine’s Day to thank legislators who sponsored HB 125, Ohio’s heartbeat bill.

Although many people use the phrase “fetal heartbeat” in reference to bills like this one, some physicians have argued that the term “fetal heartbeat” is misleading. While fetuses do exhibit cardiac activity at six weeks, that activity happens in the fetal pole — a millimeters-thick part of a fetus that bears little resemblance to a human heart despite the colloquial use of the term "fetal heartbeat" to refer to it. Dr. Jennifer Gunter, OB/GYN explains: 

“Fetal cardiac activity can be detected [from the fetal pole] as early at six weeks from the last menstrual period… The fetal pole is between the two markers and is a thickening at the end of the yolk sac (the yolk sac is the circular blob) and contains the earliest ultrasound evidence of cardiac activity. I know some have wondered why not use the term embryo, but as it’s the fetal pole that is being measured I think the term ‘fetal’ is technically fine. However, when most people think of a heartbeat they don’t think of a 4.3 mm thickening next to a blob… The earliest cardiac activity is seen in a fetal pole and using any other term means that you are lock step with a campaign of misinformation and it’s wrong. The politicians who write these bills are dealing in misinformation.”

Four states — Georgia, Mississippi, Kentucky, and Ohio — have passed “heartbeat” bills, and states like North Dakota and Iowa have also passed similar measures. However, none of these bills have gone into effect, and all have been, or will be, challenged in court.

Rep. King’s home state of Iowa, which passed its own heartbeat bill in 2018, saw the law struck down by a state judge in January 2019. Judge Michael Huppert found the law unconstitutional, concluding that the Iowa Supreme Court’s earlier decisions affirming a woman’s fundamental right to an abortion would apply to — and invalidate — the law.

Some legislators backing heartbeat bills say they see them as potential challenges to Roe v. Wade, which precludes states from banning abortion before viability a fetus can survive outside the womb (after 20 weeks). As a result, the restrictions that take effect prior to viability (either at 6 or 12 weeks) may be found unconstitutional under judicial review. However, one prominent anti-abortion activist, James Bopp Jr., actually opposed Ohio’s 2011 heartbeat bill on the grounds that it might give the Supreme Court an opportunity to strengthen Roe v. Wade if appealed to the Court.

Physicians for Reproductive Health’s Diane Horvath-Cosper says that this bill would almost certainly be found unconstitutional if passed, and that its true purpose is to make other abortion restriction bills seem moderate by comparison: 

“The goal of introducing legislation like this is that it makes everything else look moderate by comparison – so when a congressman introduces a 20-week [abortion ban] bill, it looks moderate by comparison.”

Media:

• Sponsoring Rep. Steve King (R-IA) Press Release (115th Congress)
  
• Sponsoring Rep. Steve King (R-IA) Tweet
  
• The Guardian
  
• The Hill
  
• Rewire.News
  
• Vox (Context)
  
• HuffPost (Context)
  
• Daily Beast (Context)
  
• Des Moines Register (Context)
  
• Countable (Context)
  
• Countable (Context)