The Republican-controlled Ohio Senate voted 18-13 on Wednesday to pass a so-called "heartbeat bill.” If the legislation becomes law, it would ban abortions once a heartbeat is detected, which can be as early as six weeks of gestation. At that point, most women don't even know they're pregnant.
The bill, which the Ohio House of Representatives passed in November, was amended so that transvaginal ultrasounds would not be required in order to detect a foetal heartbeat. That provision means that some women could still have access to abortion care at 11 or 12 weeks of gestation. Because there were changes, the legislation now goes to the House for another vote before being sent to the governor’s desk.
The bill looks to criminalise abortion providers who offer the procedure after a foetal heartbeat is detected, which often happens around six weeks of gestation. If a woman has an abortion after that point, her physician would be charged with a fifth-degree felony punishable by up to one year in prison.
The legislation makes exceptions if the woman's health is at risk and if a medical emergency prevents physicians from detecting the foetal heartbeat. However, the bill contains no exceptions for cases of rape or incest. On Wednesday, Democrats presented amendments to add exemptions for sexual assault and incest survivors, and include mental health as part of the exemption in case a woman’s health is in danger. The Republican majority rejected the changes.
A similar heartbeat bill was also passed by lawmakers in late 2016, but Republican Gov. John Kasich vetoed it then, arguing the bill was "clearly contrary to the Supreme Court of the United States’ current rulings on abortion." (Instead, he signed a 20-week abortion ban.) If the new heartbeat bill makes it to his desk before he leaves office, Kasich has said he would veto it again. But Republican Governor-elect Mike DeWine has promised to sign the bill after he is sworn-in in January. The Ohio Legislature could also have enough votes to override Kasich's veto if the bill passes before DeWine comes into office. State Rep. Christina Hagan, one of the authors of the legislation, said the Legislature plans to do this in November. "The point is: it’s time," she said during debate at the time. "It doesn’t matter if the governor is with us or against us."
Ohio's six-week abortion ban is just one of many new abortion restrictions that have been pushed forward this year. Mississippi and Louisiana tried to ban abortion at 15 weeks, but a federal judge blocked the former's law. Iowa Gov. Kim Reynolds signed into law a heartbeat bill, which was set to take effect in July. That legislation was blocked by the courts before it could go into effect.
November's vote caused outrage among reproductive health advocates. "Anti-abortion ideologues should not attempt to insert politics between a patient and their physician. What we’re seeing is state legislators, John Kasich, and Mike DeWine playing politics with women’s lives," NARAL Pro-Choice Ohio Executive Director Kellie Copeland said in a statement provided to Refinery29 at the time. "This abortion ban would block patients from the care they need and deserve. If enacted, this legislation would worsen the reproductive health care crisis in our state. The decision to have an abortion is not a political decision."
If the bill becomes law, we can expect it to be challenged in court since pro-choice advocates say six-weeks bans are unconstitutional. This is because of the U.S. Supreme Court's 1992 decision on Planned Parenthood v. Casey, which upheld a woman's right to choose an abortion before viability. (Research says a fetus is not considered viable before 20 weeks of pregnancy.) Ever since that ruling, courts have said banning abortions before the 20-week mark is unconstitutional.
But the possibility of a legal challenge is exactly the reason why anti-abortion lawmakers are pushing these bills, said Elizabeth Nash, senior state issues manager at the Guttmacher Institute. "Assuming that [Ohio's six-week abortion ban] passes and becomes law, it will be part of this nonstop attack on abortion rights," she told Refinery29.
Anti-choice advocates have felt emboldened by the current administration because both President Donald Trump and Vice President Mike Pence have promised to overturn Roe v. Wade, the landmark 1973 decision determining a woman has a right to choose an abortion. And since the new balance of the US Supreme Court has been officially cemented to the right with the confirmation of Justice Brett Kavanaugh, Nash said we can expect even more states will try to pass anti-abortion legislation with the hopes of it bringing the legal challenge that makes abortion illegal in the United States once again.
"We are going to see a number of states, if not passing extreme abortion bans, [at least] debating them and seriously consider them in 2019. Most of the attention has been focused on the Supreme Court and passing restrictions that are unconstitutional right now, but could provide the court with the opening to undermine or overturn Roe," Nash said. "There are multiple opportunities for the courts to weigh in. It’s a very dangerous time, if you support abortion rights."
During debate in November, state Rep. Ron Hood explicitly said he hopes the heartbeat bill will be used to challenge Roe. He is also the co-author of a total ban on abortion introduced this past spring. The legislation proposed to charge with murder — a crime that is punishable by the death penalty in the state — both abortion providers and women who underwent the procedure. The bill never left the Health Committee, though it might be reconsidered.