black-and-white photograph of Texas State Capitol Building

On September 1st, S.B. 8, otherwise known as the Texas Heartbeat Act, came into force. This Act bars abortions once fetal cardiac activity is detectable by ultrasound. While the specific point at which this activity can be identified is challenging to pin down, it most often occurs around the six-week mark. Past this point, the Act allows private citizens to sue those who offer abortions or ‘aids and abets’ a procedure – this includes everyone from abortion providers to taxi drivers taking people to clinics. If the suit is successful, not only can the claimant recover their legal fees, but they also receive $10,000 – all paid by the defendant.

The introduction of this law raises numerous concerns. These include (but are certainly not limited to) whether private citizens should be rewarded for enforcing state law, the fairness of the six-week mark given that most people won’t know they’re pregnant at this point, the lack of an exception for pregnancies resulting from rape or incest, and whether the law is even constitutional. However, in this piece, I want to draw attention to the Act’s language. Specifically, I want to look at two key terms: ‘fetal heartbeat’ and ‘fetus.’

Fetal Heartbeat

At multiple points within the Act, reference is made to the fetal heartbeat requiring detection. This concept is so central to the Act that not only does heartbeat feature in its title, but it is also the very first definition provided – “(1) ‘Fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” You would think that such terminology is correct and accurate. After all, accuracy is essential for all pieces of legislation, let alone one that has such crucial and intimate ramifications. Indeed, the Act itself indicates that the term is appropriate as, in the Legislative Findings section, it states, “(1) fetal heartbeat has become a key medical predictor that an unborn child will reach live birth.

However, there exists here a problem. For something to have a heartbeat, it must first have the valves whose opening and closing results in the tell-tale ‘thump-thump’; no valves, no heartbeat. While this may seem obvious (indeed, I think it is), it appears to be something the Act’s creators have… overlooked.

At six weeks, the point at which cardiac activity is typically detectable and abortions become prohibited, a fetus doesn’t have these valves. While a rudimentary structure will be present, typically developing into a heart, this structure doesn’t create a heartbeat. So, if you put a stethoscope on a pregnant person’s stomach at this point, you wouldn’t hear the beating of a heart. Indeed, when someone goes in for an ultrasound, and they listen to something sounding like a heartbeat, this is created by the ultrasound machine based upon the cardiac activity it detects. As such, the Heartbeat Act concerns itself with something that is entirely incapable of producing a heartbeat.

For some, this may seem like a semantic issue. After all, the Act clarifies what it considers a fetal heartbeat when it conflates it with cardiac activity. You may think that I’m being overly picky and that the two amount to roughly the same thing at the end of the day. You might argue that while this activity may not result in the same noise you would hear in a fully developed person, it still indicates a comparable biological function. However, the term heartbeat is emotively loaded in a way that cardiac activity isn’t, and this loading is essential to the discussion at hand.

For centuries, a heartbeat (alongside breath) was the defining quality that signified life. Thus, someone was dead when their heart irrevocably stopped beating. However, with developments in medical technologies, most notably transplantation, this cardiopulmonary definition of death became less valuable. After all, undergoing a heart transplant means, at some point, you’ll lack a heartbeat. Yet, saying that person is dead would seem counterintuitive as the procedure aims to, and typically does, save the organ’s recipient. As a result, definitions of death started to focus more on the brain.

By saying that cardiac activity is synonymous with a heartbeat, the creators of the Act seek to draw upon this historical idea of the heartbeat as essential for life. By appealing to the emotive idea that a heartbeat is detectable at six weeks, an attempt is made to draw the Act’s ethical legitimacy not from scientific accuracy but an emotional force. Doing so anthropomorphizes something which is not a person. The phrase fetal heartbeat seeks to utilize our familiarity with the coupling of personhood and that tell-tale ‘thump-thump.’ But it is important to remember that the entity in question here does not have a heartbeat. Heck, cardiac activity, which is at its core electrical activity, doesn’t even indicate a functional cardiovascular system or a functional heart.

Fetus

So far in this piece, I have used the same terminology as the Act to describe the entity in question, that being the word ‘fetus.’ However, much like the use of ‘fetal heartbeat,’ the Act’s use of the phrase is inaccurate and smuggles deceptive emotive rhetoric. Unlike ‘fetal heartbeat,’ however, ‘fetus’ is at least a scientific term.

There are, roughly speaking, three stages of prenatal development: (i) germinal, where the entity is nothing more than a clump of cells (0 – 2 weeks); (ii) embryonic, where the cell clump starts to take on a human form (3 – 8 weeks); and (iii) fetal, where the further refinement and development occurs (9 weeks – birth).

I’m sure you can already spot the issue here. If cardiac activity occurs typically around the six-week mark, at which point the Act prohibits abortions, then this would place this boundary squarely in the embryonic, not the fetal, stage. Thus, using the term ‘fetus’ throughout the Act is scientifically inaccurate at best, and dangerously misleading at worst. Once again, you might wonder why this matters and think I’m making a bigger deal of this than it needs to be. After all, it’s only a couple of weeks out of step with the scientific consensus. However, as is with the case of ‘fetal heartbeat’ (a term that is now doubly inaccurate as it refers to neither a fetus nor a heartbeat), the term ‘fetus’ comes packaged with emotional baggage.

Describing the developing entity as a fetus evokes images of a human-like being, one that resembles how we are after birth and makes it easier to ascribe it some degree of comparable moral worth. But, this is not the case. An embryo, around the six-week point, may possess some human-like features. However, it is far from visually comparable to a fully formed person, and it is this point that the Act’s language obfuscates. Describing the embryo as a fetus is to try and draw upon the imagery the latter evokes. To make you think of a baby-like being developing in a womb and to push the belief that abortion is a form of murder.

Wrapping it up

It would seem a reasonable claim to make that accuracy is essential in our philosophical reasoning and our legal proceedings. We want to understand the world as it is and create systems that are best suited for the challenges thrown at them. Key to this is the use of appropriate language. Whether deliberative or not, inaccurate terminology makes it harder to act morally as inappropriate assumptions often lead to inappropriate results.

The moral status of the embryo and fetus is a topic that has been debated for centuries, and I would not expect it to be unanimously resolved anytime soon. However, using incorrect language as a means of eliciting a response built solely on the passions is undoubtedly not going to help. Laws need to describe the things they are concerned with accurately, and the Texas Heartbeat Act fails in this task.

Richard B. Gibson received his PhD in Bioethics & Medical Jurisprudence from the University of Manchester. His research interests lie at the intersection of philosophy and biology, the philosophy of law, nihilism, and normative ethics. Richard’s currently working on a series of papers examining the social, legal, and ethical implications of cryopreservation.