One of the bill’s supporters, State Rep. Niraj Antani, R-Miamisburg, says he anticipates a court challenge as well and does indeed look at the bill as a vehicle for overturning the 1973 U.S. Supreme Court Roe v. Wade decision. That ruling legalized abortion nationwide and said states could not prohibit it in the first two trimesters.
“In the pro-life community we have to send up test cases to the Supreme Court. The Supreme Court changes its mind,” Antani said. “I think Roe v. Wade will be overturned.”
Two bills
Ohio’s heartbeat bill bans abortion when a fetal heartbeat can be detected, typically at about 6 weeks — before some women know they are pregnant. The legislature is also considering a bill banning abortions at 20 weeks, which the House is expected to consider on Thursday.
Both types of restrictions have proven popular for opponents of abortion rights in recent years. Federal courts have already struck down similar “heartbeat bills” in North Dakota and Arkansas and 20-week bans in Arizona and Idaho.
The Ohio House had originally passed a version of the heartbeat bill in 2015 and late Tuesday approved the abortion ban as part of an amended child abuse reporting bill the Senate passed.
Ohio senators voted 21-10 on the abortion ban, which has no exception for pregnancies resulting from rape or incest. The House approved it 56-39. Both votes were mostly along party lines, with Republicans supporting the bill and Democrats opposing it.
House Minority Leader Fred Strahorn, D-Dayton, voted against it, calling the move “shameful.”
“The six-week ban is a shameful, gross government invasion of deeply personal and private decisions made by families and women in consultation with medical professionals,” Strahorn said. “The fact that this unconstitutional ban doesn’t even include an exception for rape or incest is an embarrassment that directly conflicts with our values as Americans.”
Buying a lawsuit?
Constitutional law experts Richard Saphire and Mark Caleb Smith both said a majority of the the U.S. Supreme Court has repeatedly ruled in favor of abortion rights, although the high court has not yet considered a case involving a heartbeat bill or 20-week ban.
“What the state is doing in enacting this legislation and, if the governor signs it, is buying itself a lawsuit,” said Saphire, professor emeritus at the University of Dayton School of Law. “I think it is clearly unconstitutional as the law stands now. I don’t think that’s likely to change with a (President-elect Donald) Trump appointment to the Supreme Court because the five-member majority that upholds abortion rights is still intact.”
The Roe v. Wade decision said states could restrict abortions after viability — the point when the fetus has a reasonable chance of surviving under normal conditions outside the uterus. The ruling offered no legal definition of viability, saying it could range between 24 and 28 weeks into a pregnancy.
“I think as the (two Ohio) bills stand right now they’d be struck down by the United States Supreme Court,” said Smith, director of Cedarville University’s Center for Political Studies.
“The basic standard the court uses is they say a new law cannot create what the court calls an ‘undue burden’ on the woman’s right to choose an abortion before viability,” said Smith. “The way the court has interpreted that term ‘undue burden’ makes me think they will strike down this law.”
‘We’ve been looking for this’
Paul Coudron, executive director of Dayton Right to Life, applauded the Ohio’s legislature’s action.
“This has the opportunity with the governor’s signature of saving hundreds, maybe even thousands of lives here in Ohio,” Coudron said. “We’ve been looking for this for some time, several years, for this historical bill.”
Abortion rights supporters said the bill is an attack on women’s rights and will force them to travel out of state for abortions.
“Women should be trusted and respected to make their own personal health care decisions — not politicians,” said Iris E. Harvey, president and chief executive of Planned Parenthood of Greater Ohio. “For many women the expense and time these restrictions would force upon them would make access (to abortion) impossible. Let’s be clear, these bills are a blatant attempt by the Ohio Legislature to ban abortion. I urge Gov. Kasich to veto both bills.”
Kasich, a Republican, has 10 days to decide whether to sign or veto the bill. He declined comment Wednesday.
“A hallmark of lame duck is a flood of bills, including, bills inside of bills and we will closely examine everything we receive,” his press secretary, Emmalee Kalmbach, said.
Daniels said the ACLU will seek an immediate injunction to stop enforcement of the bill if Kasich signs it as written.
Legal questions
Saphire said the bill could run afoul of an Ohio Constitution requirement that restricts legislative bills to a single subject. The ban was inserted as an amendment to a bill streamlining how mandatory reporters, such as health care providers and teachers, must report child abuse or neglect.
Antani said he doesn’t believe it violates the state constitution because both measures are related to children and children’s health.
The Ohio Senate Democratic Caucus also filed a formal journal protest saying Republicans broke Senate rules in how the heartbeat was added to the child abuse reporting bill.
Senate President Keith Faber, R-Celina, ruled that the bill was handled properly.
Mike Brickner, senior policy director for the ACLU, said Ohioans deserve better.
“These last-minute legislative maneuvers leave almost no opportunity for public input,” he said. “Laws on important issues like access to health care should be carefully deliberated, not rushed through the legislature in the dead of night.”
Staff writers Laura A. Bischoff and John Bedell contributed to this report.
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