Does the Supreme Court Have a “Bun in its Oven?”

John Simon, Associate Member, University of Cincinnati Law Review


In 1965, the Supreme Court of the United States issued a ruling in the case of Griswold v. Connecticut in which the Court found that the “specific guarantees in the Bill of Rights have penumbras” prompting the establishment of an unenumerated right to privacy.[1] Moreover, Griswold v. Connecticut paved the way for the recognition of other unenumerated rights.[2] Eight years after Griswold, the Supreme Court decided Roe v. Wade, solidifying the right to obtain an abortion. In that case, the Court found that “the right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[3] In the aftermath of Roe, the Supreme Court limited the scope of the right.

Forty-six years later, the future of abortion rights remains uncertain. In May 2018, Iowa became the next state to pass heartbeat legislation, adopting harsher abortion regulations.[4] Additionally, the United States experienced the tense confirmation process of Judge Kavanaugh to fill the vacant Supreme Court seat.[5] While the controversy surrounding the confirmation pertained to sexual assault allegations, Judge Kavanaugh’s confirmation arguably brings doubt regarding abortion rights.[6]

On January 22, 2019, an Iowa District Court judge struck down the state’s recently adopted heartbeat law as unconstitutional.[7] It’s unclear whether the judge’s decision will be challenged at the appellate level, but the legal fight regarding abortion is far from over.

Heartbeat Legislation

The heartbeat bill is nothing new. The first attempt to pass such a bill came in 2011 when the group Faith2Action introduced the bill to the Ohio legislature.[8] The bill would require physicians to search for a fetal heartbeat prior to the administration of an abortion; if a fetal heartbeat was detected, then the abortion would be precluded unless some medical emergency would put the woman at risk of death of serious injury.[9] The bill ultimately failed to pass, but provided inspiration to other states attempting to curb abortion rights.[10]

In 2013, North Dakota became the first state to succeed in passing a heartbeat law.[11] That law banned abortions after the finding of a detectable heartbeat in an unborn child. A medical emergency could necessitate the procedure, but the doctor would need to note in the woman’s medical records the medical emergency.[12] A federal court later struck down the law as unconstitutional, and the Supreme Court declined review the case.[13]

In 2013, Arkansas also passed a heartbeat law that precluded the administration of an abortion if a physician detected a fetal heartbeat and the woman had been pregnant for at least twelve weeks.[14] Once again, courts struck down the law, and the Supreme Court refused to review the case.[15]

While heartbeat bills include minor differences, each shares a common nucleus. The bills preclude an abortion once a physician detects a fetal heartbeat. At that point, only a medical emergency necessitates the procedure.

The Future of Abortion

            On June 29, 2018, the Supreme Court of Iowa, ruling on an abortion restriction separate from the heartbeat law, held that “that implicit in the concept of ordered liberty is the ability to decide whether to continue or terminate a pregnancy.”[16] Thus, as the right to obtain an abortion remains fundamental, any governmental restrictions on abortion would need to be justified by a compelling state interest and be narrowly tailored to serve that compelling interest.[17] The Supreme Court of Iowa determined that the challenged restriction, requiring a seventy-two hour waiting period prior to the abortion procedure, did not satisfy strict scrutiny.[18]

Unsurprisingly, Iowa’s District Court judge struck down the heartbeat law as unconstitutional finding that the law also failed to pass the muster of strict scrutiny.[19] Specifically, the judge noted that the law was not narrowly tailored to serve the state’s compelling interest because the law banned abortions at a time well before the fetus’s viability.[20]

A pattern has emerged showing the unconstitutionality of heartbeat bills under the existing jurisprudence of the Supreme Court of the United States. However, as Steven Aden, chief legal officer and general counsel for Americans United for Life, stated: “They are unconstitutional under current federal constitutional law. They were designed as a vehicle to challenge Roe in the Supreme Court, but they won’t get to the Supreme Court unless you can convince four members of the court that a fifth member would go with them to uphold the heartbeat bill.”[21] The Supreme Court has routinely rejected to hear cases involving heartbeat legislation. However, with states continuing to push for the passage of such legislation, and with a conservative majority currently sitting on the Court, the future of abortion rights remains unclear.


[1] 381 U.S.479, 484-486 (1965).

[2] Michael C. Dorf, Constitutional Law Stories (2 ed. 2009).

[3] Roe v. Wade, 410 U.S. 113, 153 (1973).

[4] Stephen Gruber-Miller, “Iowa Constitution bars new fetal heartbeat abortion law, Planned Parenthood and ACLU say in lawsuit,” The Des Moines Register (May 15, 2018),

[5] Clare Foran and Stephen Collinson, “Brett Kavanaugh sworn in as Supreme Court justice,” CNN (Oct. 6, 2018),

[6] Sarah McCammon, “Brett Kavanaugh’s Record On Abortion,” NPR (Aug. 31, 2018),

[7] Eric Levenson, “Iowa’s ‘fetal heartbeat’ abortion restriction declared unconstitutional,” CNN (Jan. 23, 2019),

[8] Jessica Ravitz, “Courts say anti-abortion ‘heartbeat bills’ are unconstitutional. So why do they keep coming?” CNN (Jan. 26, 2018),

[9] “HB 125 – The Heartbeat Bill (2011-2012),” Aclu Ohio, (last visited Jan 26, 2019).

[10] Ravitz, supra note 8.

[11] Id.

[12] H.B. 1456, 63rd Leg. (N.D. 2013).

[13] Ravitz, supra note 8.

[14] S.B. 134, 89th Gen. Assemb. (Ark. 2013).

[15] Ravitz, supra note 8.

[16] Planned Parenthood of the Heartland v. Reynolds ex rel. State, 915 N.W.2d 206, 237 (Iowa 2018).

[17] Id. at 237-238 (citing Bowers v. Polk Cty. Bd. of Supervisors, 638 N.W.2d 682, 694 (Iowa 2002)) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993)).

[18] Id. at 244.

[19] Eric Levenson and Marlena Baldacci, “Iowa’s ‘fetal heartbeat’ abortion restriction declared unconstitutional,” CNN (Jan. 23, 2019),

[20] Katarina Sostaric, “Judge Strikes Down Iowa’s ‘Fetal Heartbeat’ Abortion Law,” Iowa Public Radio (Jan. 22, 2019),

[21] Ravitz, supra note 8.


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