The Misconception of Conception: The Texas Heartbeat Act

*This Article Currently Appears in the Tracy Anderson Magazine Fall 2021 Issue

The Honorable Ruth Bader Ginsburg

Welcome to the good ‘ole US of A. Land of the free and the brave. And, Texas, the proud owner and divine creator of the Heartbeat Act. Those Texans, so damn creative to come up with legislation that prohibits and criminalizes abortion.

Suppression of Women’s Rights

It is true, Texas stripped women of the right to make decisions that concern their own body. And just like that, with the stroke of a pen, the Heartbeat Act became the law of the land in Texas.  Thank you to the Texas State Legislature and Governor Greg Abbott. Y’all give yourselves a high five for reducing women to chattel. For all you non-lawyer folks, chattel means ‘thing’, or ‘property’.

Indeed. Texas women, consider yourselves owned by Texas men.

I am serious. How did these politicians come up with this law? The last time I checked, politicians, lawyers and judges are not physicians. Hmmm. Who are these people to determine the where and when of abortion?

Check your calendars. Is this not the 21st Century?

I ask y’all: Why is there an overwhelming WANT in this country to suppress the rights of women? For that matter, why do our fellow sisters, our brethren, want to suppress our collective rights? Why?

The Heartbeat Act

The Legislative intent of the Heartbeat Act is to block Texas women from obtaining an abortion. Plain and simple.

The state legislators seemingly picked out of ‘thin air’ a cut-off date as early as 6 weeks for Texans to legally obtain abortions. In law, we call that ‘arbitrary and capricious’, because this statute was not rooted in medical science. Again, the intent was to ban abortions because they wanted to.

Definitions of Statute

Let us together, review the statute, to understand the far-reaching implications of this legislative abomination. In order to understand the meaning of the statute, we first must read the “Definitions” section.

When we read statutes, you must first look at the definitions section of the statute which is the road map to decipher the actual law. Sometimes, statutes are written with lots of fancy, schmancy legalese, to confuse the average person. Yes, it is written to confuse YOU.

It is important to note that the Texas Legislators determined the definitions of these words. Not you. Not me.

The Detection of a Fetal Heartbeat

According to the statute, “…The Heartbeat Act was enacted to amend The Texas Health and Safety Code, Chapter H”. This statute allegedly protects the health of Texans. Wow. Does it really?

The statute defines words, such as ‘Fetal Heartbeat’, ‘Gestational Age’, ‘Gestational Sac’, Pregnancy’, ‘Unborn Child’, and ‘Cardiac Activity’. That is a lot of medical terminology. To reiterate, I had no idea politicians, lawyers, and Greg Abbott knew so much about medicine. Fascinating, right?

When you put all these definitional words together, the Texas legislature banned abortions as early as six weeks.

A question to every woman who has ever been pregnant: Did you know as early as 6 weeks, that you were pregnant? I for one, did not.

Viability of a Fetus

The Heartbeat Act, has determined that a ‘fetus’ is now ‘viable’ as early as 4 weeks into a pregnancy. Did you know that the viability of a fetus is defined as when a fetus can survive outside of the womb? The landmark U.S. Supreme Court Case Roe v. Wade, recognized fetal viability at 24 to 28 weeks.

In fact, this legislation determined a fetus is viable at 4 weeks, when, the State of Texas claims, a fetal heartbeat can be detected via ultrasound. However, many physicians will assert that at 4 weeks, the ‘fetus’ is an embryo, and a human heart is not developed yet. Thus, it can be argued, that the alleged heartbeat is really an electronic flicker that the ultrasound recorded rather than a human heartbeat.

For purposes of this statute, the ‘fetal’ viability clock starts ticking from the first day of a woman’s last menstrual cycle (also known as ‘period’).

Once again, I ask all women who menstruate: Do you know the last day of your menstrual cycle? I for one, when I had menstrual cycles, never knew the last day.

I ask women who have ever been pregnant: Did you know as early as 4 weeks, which was calculated from the first day from your last menstrual cycle, that you were pregnant? When I was trying to get pregnant, I did not have any idea that I was pregnant at 4, 5, 6, or 7 weeks. Really.

Not surprising that many women do not know they are pregnant. As a matter of fact, the only way you can tell if you are pregnant, is when you ‘skip’ or ‘miss’ a menstrual cycle, which typically occurs 2 weeks after conception. And by the way, many women’s menstrual cycles, are not timely and punctual. They are erratic. Thus, if a woman’s ‘period’ is ‘late’ by a few weeks, not all women would suspect a pregnancy. Under this common scenario, a woman may learn she is 7 or 8 weeks pregnant by taking a pregnancy test at home.

The problem with real life and this statute, is that when a woman finally is examined by a doctor to confirm a pregnancy, she could be 9 weeks pregnant. In Texas, a woman no longer has the right to choose what is right for her and her family.

Compelling State Interest to Protect

Now, the statute cites that Texas has a compelling interest from the outset of a woman’s pregnancy to protect the health of the woman and the life of the unborn child.

Ask yourself: Do they really have a compelling interest to protect the health of the woman and the life of the unborn child?

According to the statute, Texas wants the Woman to ‘make an informed choice about whether to continue her pregnancy’, specifically, that ‘the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity’. This is ludicrous for the reasons previously set forth. Most women do not know they are pregnant at 6 weeks; for that matter, at this juncture of the pregnancy it is difficult to medically determine whether the embryo will survive full-term.

Quite the contrary, this legislation limits health care to women and the unborn child. The legislation does not take into consideration the health of the woman, nor the health of the fetus.

Misconception of Conception

There is a misconception as to how women view an abortion.

  1. I have never met a woman who was ‘eager’ to have an abortion.
  2. I have never met a woman who used abortion as a form of birth control.

Walk in My Shoes

How do I know this? Walk in my shoes. I had an abortion 23 years ago, almost to the day of writing this article. There. I said it out loud.

I have finally decided to share my life experience, because I believe it unequivocally provides clarity as to why the Texas Statute does not protect a pregnant Woman or the Unborn Child.

Quite the contrary. The Heartbeat Act is cruel and inhumane, because it sets forth specific dates that define in-utero developmental milestones not rooted in medical science and disregards the health, safety and welfare of both mother and unborn child.

The consequences of this ban on abortion are in truth, far more emotionally and physically detrimental than the actual abortion.

In simple terms, the Heartbeat Act is a wolf dressed as a lamb. Governor Abbott and the Texas State Legislature have no interest in protecting the health, safety and welfare of both the woman and unborn child. Rather, this Act promotes their own agenda to ban abortion at the behest of all people.

If I lived in Texas now and chose to have a baby, my pregnancy would be subjected to the Heartbeat Act.

My Story

My husband and I are carriers of the Tay-Sachs gene, which is a fatal genetic illness that emerges when a  baby is 6 months old. As my doctor told me, babies born with Tay-Sachs are beautiful, have piercing blue-eyes and blond hair. At 6 months of age, all of the motor skills a baby has developed up to that point, such as sitting up, rolling over and crawling come to an absolute, sudden HALT. The baby will go blind, deaf, and experience severe mental retardation. Typically, a Tay-Sachs baby lives between the ages of 4-7. However, due to modern medicine, the child, could ‘live’ longer. Clearly, this would be no ‘life’. It would be torture for the baby/child and mother. The baby would have to be institutionalized. Horrible.

When both prospective mother and father test positive for Tay-Sachs, there is a 1 in 4 chance the baby will be born with the disease. To be clear, for each pregnancy, there is a 25% chance the baby could be born with the disease.

In truth, despite the fact we were both carriers, I did not believe there was a chance that we could possibly have a child diagnosed with that terrible disease. The odds seemed so remote at the time to me. You know, the ‘that will never happen to us’ scenario.

23 years ago, I learned I was pregnant with my second child. My pregnancy was confirmed approximately in the 8th week. If this were Texas, I would not be permitted to choose to have an abortion.

When my doctor confirmed my pregnancy, he discussed 2 tests I could take to determine whether the baby had Tay-Sachs.

Test #1 was a ‘Chorionic Villus Sampling (CVS)’ performed no earlier than the 10th week of pregnancy. CVS is a prenatal test in which a sample of chorionic villi is removed from the placenta for testing.

Test #2 was an ‘Amniocentesis’ (Amnio) performed no earlier than the 16th week of pregnancy. The Amnio is a procedure in which amniotic fluid is removed from the uterus for testing or treatment.

I elected to take the CVS test because I could get the results earlier in the pregnancy. The sooner to know whether the baby had this fatal disease, the better. Right?

In the 10th week of my pregnancy, I took the CVS test. The test proved to be extremely painful. I actually thought I would pass out during the test. After 2 failed attempts to get a sample, we had to end the test. I physically could not endure the pain.

Thus, I had to wait to take the Amnio. I can assure you, there is a big difference from the 10th to the 16th week of pregnancy. I was now in my second trimester and was sporting a little ‘belly’. Even had a bit of that pregnancy ‘glow’.

In the 16th week of that pregnancy, my doctor performed the Amnio. It takes 2 weeks to get the test results.

In the 18th week of that pregnancy, my doctor personally called me, and told me the baby did have Tay-Sachs. It was as if the world stopped. My doctor was sensitive to my disappointment, shock, and sadness. He proved to be my guardian angel for the next few weeks, months and years.

In addition to my doctor, a counselor from the genetic center at the hospital immediately phoned me, to also give me emotional support and guidance as to ‘next-steps’. According to several of my physicians, including religious advisors, the only option was to have an abortion. If this were Texas, I would not be permitted to choose to have an abortion.

We all concurred it would be cruel and inhumane for this innocent child to suffer from Tay-Sachs. 

The Late-Term Abortion

I was now 18 weeks pregnant with a fetus that had a fatal genetic illness. Upon my consent, my doctor immediately made an appointment for me to see another doctor to perform the late-term abortion. If this were Texas, I would not be permitted to choose to have an abortion, nor would a doctor be permitted to schedule an abortion.

To make matters worse, we were about to celebrate my first born child’s second birthday.

Literally, the next day, I met the doctor who would perform the abortion.  In truth, all I can remember is his smile. Oh, and he promised me that in the future, I will be able to conceive 50 babies. Apparently, late-term abortions are not so easy, and a skilled physician is required to perform this procedure.

I considered myself to be blessed. Even then, despite my heartache and despair, I wondered what less fortunate women would do in my situation.

I had no fear. I put my life in the hands of this experienced physician, who, along with my regular OB-GYN, guided me through this dramatic life experience.

To understand this timeline of events, it is the 18th week of my pregnancy. Within 2 days of learning the fetus I was carrying had the fatal genetic illness Tay-Sachs, I was scheduled for an abortion at an abortion clinic in NYC. If this were Texas, my doctors would be precluded from scheduling an abortion.

In truth, never in my life did I ever entertain the idea of having an abortion. However, never in my life did I ever know that my husband and I would be carriers of a fatal genetic illness. If this were Texas, my husband would have been accused of ‘aiding and abetting’ an abortion and be fined $10,000 for taking me to the clinic. I know. So hard to believe, but that is the Texas law.

Behind the façade of a very tall NYC building, was a non-descript abortion clinic tucked away. Hidden from the world. No signage, no labels. It looked like a business office from the hallway. Why so clandestine?

The year was 1998: At that time, it was common to see anti-abortion activists protest in front of medical facilities where abortions were performed. There were a few instances where these facilities were the target of violence, such as bombings, vandalism and arson. In October 1998, a physician who performed abortions, was specifically targeted and murdered at his home. Clearly, these were turbulent times.

My doctor scheduled this procedure at a clinic, and not in a hospital, for the sole reason that the clinic had up-to-date medical equipment to perform a late-term abortion. My health was a priority, and my doctors wanted me to be able to conceive future children. Again, if this were Texas, this would not be an option.

After the procedure, I awoke in a large room that must have had at least 12 beds for women to recover post-operative. One by one, we woke up. As I lay in my bed, I looked to the left, I looked to the right. Women of all colors, nationalities, and religions were just like me. The only difference was we came from different neighborhoods.

When we were still laying in our respective beds, we all started to talk to each other. This proved to be a life-altering moment for me. First of all, everyone was sad. Not one person was happy. Second, everyone was honest. Of course, we were, we had no choice, we were coming out of anesthesia. Third, everyone had an incredible reason for choosing to have an abortion. And not one reason was for birth control.

In truth, I loved each and every one of those women. This experience is something that I have carried with me for 23 years.

Fortunately, my wonderful doctors gave me the best medical care. And as my doctor promised, once I was fully recovered, I learned I was pregnant. This time, after waiting for the amnio results at 18 weeks, my doctor happily congratulated me that the baby was healthy.

No Badge of Honor

Abortion is a personal, private choice. There is no badge of honor awarded for choosing to have an abortion. Alternatively, a woman should not be shamed to wear a Scarlett letter for choosing to have an abortion.

In truth, no one understands what it means to have an abortion. Unless, of course, you chose to have one.

Please do not limit, restrict or ban my right to an abortion unless you have walked in my shoes.

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