Heartbeat bills have been introduced in numerous state legislatures. Some are held up in committee, but others make it to a floor vote. Some even pass the legislature and may even be signed by the governor. In previous years, even those that survive are certain to be struck down by federal judges.
But the political and judicial landscape may be changing. That is why David French argues that it is time for Republican legislatures to “throw down the gauntlet” and start passing heartbeat bills that would directly challenge Roe v. Wade.
He argues that the time for incrementalism is over. Most bills passed by state legislatures have focused on the margin (banning third trimester abortions, establishing a waiting period, mandating parental consent). He believes that incrementalism had its day, but now argues that it is time for bold action.
He rightly fears that incrementalism now will merely encourage judicial caution. If your goal is to have the Supreme Court overrule Roe v. Wade, why do that if most of the bills merely nibble at the margins? You don’t need to overrule this Supreme Court precedent when the latest state legislative bill on abortion merely requires an abortion doctor have admitting privileges at a local hospital.
That brings us back to his broader point. He says, “there’s a change in the cultural winds. We’re on the cusp of a cultural moment.” Passing bills that directly challenge the 1973 Supreme Court decision represent “a statement of moral intent.” The focus should no longer be on what he calls the “less death approach of incrementalism” but should be replaced by bills that protect the unborn.
The high court will be forced to take note because we have some states (like New York) passing legislation expanding the right to late-term abortions while other states pass legislation protecting the unborn.