by Max Brantley
As promised Sen. Jason Rapert and a gang of anti-abortion Republicans in both houses have again introduced a bill to require testing for a fetal hearbeat before a woman may have an abortion. But this measure goes far beyond his last bill to require women to listen to fetal hearbeats in hopes this would dissuade them from seeking an abortion.
The new Rapert bill would prohibit an abortion if a heartbeat is detected, a limitation that moves the potential prohibition in Arkansas law to the 5th week of pregnancy, far beyond the pre-viability protection period that the U.S. Supreme Court has repeatedly upheld. Viability has generally been considered at the 23rd to 24th week, though anti-abortion legislatures have tried to move that to 20 weeks, a move that is under challenge in court. Such legislation is being offered again in Arkansas and could be considered in committee this week. It's even meaner in some ways than Rapert's bill — no exception for rape and incest or mental health of mother.
The new Rapert bill would require a check for heartbeat by "standard medical practice, including the use of medical devices as determined by standard medical practice." The bill doesn't spell it out, but at the earliest stage of a pregnancy, this requirement would mean a transvaginal probe. To get an abortion under the Rapert legislation, a woman in the earliest stage of pregnancy (when most abortions are sought and performed) would be forced to submit to a vaginal probe rather than a standard ultrasound passed over the abdomen. And, if five weeks pregnant and a heartbeat was detected, a woman would be told an abortion was illegal.
Abortions to save a mother's life are excepted as are pregnancies resulting from rape and medical emergencies. But instrumental rape is OK.
It would be a Class D felony for a doctor to perform an abortion after detecting a heartbeat. The woman would not be subject to prosecution.
Rapert says at least two other states have similar laws in the works. He insists case law from 1973 only protects "necessary" abortions and that there's leeway in the law to prohibit abortions as his bill would do. I think he's charting new legal territory. He prefers to say he's defending life and responds to many legal questions by saying slavery was once legal, too.
Here's a Washington Post look at past controversies about transvaginal probes, including a photo from a North Carolina Senate campaign in which a Democratic candidate highlighted the invasiveness of the requirement.