I’ll never forget the first time I heard my oldest daughter’s heartbeat. My wife was experiencing trouble in the first three months of pregnancy, and we were worried she was miscarrying. We rode together to her doctor’s office, full of anxiety. And then we heard the magical sound — the pulsing of our little girl’s tiny heart. We didn’t know if she would ultimately be OK, but there was one thing we knew: Our daughter was alive.
I’ve long supported so-called heartbeat laws. A well-drafted heartbeat law bans abortion after a heartbeat is detected, which typically occurs roughly six weeks into pregnancy. Whether you refer to that sound we heard all the way back in 1998 as a heartbeat or simply as a form of early cardiac activity, it sends the same message: that a separate human life is growing and developing in the mother’s womb.
The significance of that heartbeat is the reason I believe that the second-most-important election of 2024 is the Florida contest over Amendment 4, a ballot measure that would enshrine a right to abortion in the Florida Constitution.
The text of the amendment is broad: “No law shall prohibit, penalize, delay or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s health care provider.” And it is aimed straight at what I believe to be one of the most reasonable pro-life laws in the nation.
Florida’s Heartbeat Protection Act bans abortions if the gestational age of the fetus is over six weeks, but it also contains exceptions for pregnancies that are a result of rape, incest or human trafficking; for fatal fetal abnormality; and to preserve the life of the mother or “avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”
Properly interpreted (problems interpreting pro-life laws have tragically led to too many terrible incidents), this is not a law that leaves women vulnerable to dangerous pregnancy complications. It has elements that are necessary to assure doctors that they won’t be prosecuted if they provide life- or health-saving care. In short, it represents a statutory effort to respect the lives and health of both mother and child.
Heartbeat laws are near-total bans on abortion (many women don’t know they’re pregnant at six weeks), but they don’t conflict with in vitro fertilization. The connection to the baby’s heartbeat also helps pro-life advocates make their best case. The existence of two distinct heartbeats — the mother’s and the child’s — connects with the emotional experience of parenthood.
There is a reason some parents will play that recording for their families. There is a reason they hand out the grainy ultrasound photos. The combination of the sound and the pictures is the way in which so many of us first encounter a precious new son or daughter, niece or nephew, grandson or granddaughter.
Any electoral collision between pro-life and pro-choice laws is consequential, but this one is far more consequential than most. The pro-life movement is defending a well-drafted law in a red state and confronting an amendment that would largely restore the legal regime that existed before Dobbs v. Jackson Women’s Health Organization, the 2022 Supreme Court decision that said the United States does not confer the right to an abortion.
In addition, the deck is also stacked in favor of Florida’s abortion restrictions. In Florida, state constitutional amendments need a 60% supermajority to pass, and Ron DeSantis’ administration is aggressively opposing the amendment. Too aggressively, in fact. The Florida Department of Health recently sent letters threatening criminal prosecution to television stations it claimed were broadcasting misleading advertisements in favor of Amendment 4.
This was an absurd and dangerous overreach. The answer to a misleading ad isn’t criminal prosecution but rather a competing ad calling out the misrepresentation.
If the pro-life movement can’t win more than 40% of the vote in a red state when its popular governor (he won reelection by more than 19 points) is all in defending the heartbeat law, then where can it win? And if Donald Trump carries the state while the heartbeat law goes down to defeat, won’t that simply reaffirm the Trump Republican pivot away from defending the unborn?
The stakes are high. If state law stands, Florida can establish a blueprint for pro-life legal activism. After seven straight losses in abortion ballot measures (including losses in red Kansas, Kentucky, Ohio and Montana), opponents of abortion will finally enjoy a clear win. They’ll have hope that they can defend well-drafted laws in the court of public opinion.
But if Amendment 4 prevails, it will raise a question: Where can the pro-life movement prevail? After its legal victory in the Supreme Court with Dobbs, does it now face a long, slow defeat if pro-life laws fall one by one, even in red America? Will it be reduced to a rump movement, ignored by both national parties and relegated to a desperate defense of the few remaining abortion restrictions in the deepest-red states?
The outcome of the election is uncertain. After a number of polls showing strong support for Amendment 4, there are now signs that that support is falling. As my news-side colleague, Kate Zernike, reported last week, a New York Times/Siena College poll indicated that 46% of likely Florida voters would vote for Amendment 4, 38% would vote against it, and 16% were undecided or wouldn’t say how they would vote.
Florida is not the only state with an abortion-related ballot measure this year. Arizona, Missouri and South Dakota also face ballot initiatives attempting to overturn abortion restrictions, and several other states are voting on measures designed to establish a right to an abortion. But none of those contests are as important, electorally or culturally, as Florida’s.
From the moment Roe was reversed in 2022, my joy at the outcome was tempered by concern over the consequences. The right under Trump had become so vicious that it was losing the ability to win hearts and minds. Its hatred of its enemies contradicts the spirit of love that should animate the argument for life.
No serious pro-life activist thought that overturning Roe would mean that New York or California would suddenly become pro-life. Yet now the pro-life movement is losing in states that it should win, and it’s lost the national Republican Party — at least as long as Trump remains in charge.
Unless popular momentum is reversed, the United States may end up with an abortion regime that is more permissive than when Roe was in effect. Broad ballot measures will have swept away even the modest restrictions that existed under Roe.
There is a certain irony at work. Hard-nosed politics, including the Senate maneuvers that blocked Merrick Garland’s confirmation in the final year of Barack Obama’s presidency, while confirming Amy Coney Barrett mere days before the 2020 election, helped create the court that overturned Roe. But that political aggression is alienating the voters necessary to secure legal protections for the unborn.
My wife’s first pregnancy was fraught and complicated. My daughter’s first pregnancy was even more perilous. During both pregnancies, our hearts rose and fell depending on the results of each ultrasound, but through it all there was one, reassuring constant: the steady heartbeats of two beautiful little girls.
A just nation should protect those heartbeats. It should protect the life and health of both mother and child. Florida’s law does just that, and if the pro-life movement can’t hold its ground there, one wonders where it can.
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