What Is a "Fetal Heartbeat"? As Louisiana Passes Latest Anti-Abortion Law, Doctors Say Term is a Misnomer

heartbeat bill louisiana abortion ban
The dubious science behind “heartbeat” bills and the sudden interest Republican-led state legislatures have had in this approach have led public health and civil rights advocates to speak out against legislation they see as deeply flawed. JASPER JACOBS / Getty Images

Louisiana on Thursday became the latest state to severely curtail abortion rights after Democratic Governor John Bel Edwards signed a bill that would restrict the procedure any time after a "fetal heartbeat" can be detected, usually around six weeks into pregnancy, and in many cases before the woman knows she is pregnant. However, a number of public health and civil rights advocates have argued that the use of the term "heartbeat" is deliberately misleading.

Though the Louisiana law would not take effect unless a similar bill in Mississippi is upheld by the courts, such legislation has highlighted the tactic of a growing number of Republican-led state legislatures to tether fetal viability—the point in a pregnancy up until which the Supreme Court has recognized a right to obtain an abortion—to a gestational stage much earlier than is currently recognized by most doctors, around 24 weeks.

The problem is, according to physicians critical of these laws, that the "heartbeats" cited in this spate of recent legislation aren't true heartbeats.

"The use of the word 'heartbeat' is intentionally misleading and manipulative," Dr. Jennifer Kerns, an associate professor of obstetrics and gynecology at the University of California San Francisco told Newsweek, explaining that she believed the primary purpose of invoking the term is to elicit an emotional response. "It's used to distract people from the actual intention [of legislators], which is essentially to ban abortion outright."

At the stage of pregnancy targeted by legislators in these bills, Kerns said that what is often called a "fetus" is actually still an embryo "approximately seven to eight millimeters in size."

"What that represents is not what we think about when we think of the word heartbeat. There is not a fully formed heart with four chambers as we know it to be in an adult or in a living person," she added. "What it is is a group of cells that are programmed to eventually become the heart, and so they have some electrical activity."

Attorney Freda Levenson with the Ohio ACLU has been trying to fight an emerging legal framework being constructed through heartbeat measures that serve as an attempt to work around the Supreme Court's viability standard in Roe vs. Wade.

Ohio passed a similar anti-abortion heartbeat bill in April, and Levenson's chapter of the ACLU filed suit to block its implementation.

"Politicians like to talk about a fetal heartbeat because once you talk about the heart it sounds like you're talking about personhood, like a baby with a heartbeat," she told Newsweek. "That's a great label for the [Ohio] bill because it sounds like it's protecting babies, but it's just not."

Of equal concern for advocates in this new crop of legislation is the notable absence of exceptions for certain, dire cases like pregnancies arising from rape and incest. Louisiana's law, like others, does carve out an exception when the mother's health is in serious jeopardy, but absent reliable guidance from regulators about what this entails, physicians may have to navigate an uncertain legal framework that could pit their obligations as healthcare professionals at odds with their duties under the law.

"The way that [health risks] get defined varies from state to state and from institution to institution, and it varies in the courts," Kerns explained.

She worried that "physicians are not trained to watch a bad situation get worse and worse until it is so emergent that they're then allowed to step in," something that narrow health exceptions appear to endorse.

"That flies in the face of medical ethics, and it should fly in the face of common sense to the public," Kerns added. "Our job is to prevent bad things from happening and to step in when they are happening."

Levenson expressed concerns that these gray areas pose risks to well-meaning healthcare providers "because if they guess wrong they can be prosecuted, fined or sent to prison."

Under Louisiana's law, doctors who violate its provisions could face up to two years in prison.

"It's a very fraught decision for the doctor to make, and it has huge consequences," she said.