Donald Trump’s election, and a presumption that he’ll appoint conservative Supreme Court justices, spurred Ohio Republicans to pass what would effectively be the nation’s strictest time-based abortion law, a legislator said.
Ohio lawmakers on Tuesday passed a controversial “Heartbeat Bill” that would ban abortions in that state from the moment the heartbeat of a fetus can be detected — which usually occurs about six weeks into a pregnancy.
What happens next for the bill, which would prohibit such abortions even in cases of rape or incest, depends on Republican Gov. John Kasich, who has 10 days to decide whether to veto the legislation.
State legislators had considered the bill in previous years but it never passed the Senate.
So what made the legislature’s Republican majority move now?
“One, a new President, new Supreme Court justice appointees change the dynamic, and that there was a consensus in our caucus to move forward,” Ohio Senate President Keith Faber, a Republican from Celina, told reporters after the final vote.
Asked if he thought the bill would survive a legal challenge, he said: “I think it has a better chance than it did before.”
If Kasich signs the bill, or if he does nothing within 10 days, the measure would become law early next year. A veto would stop the bill unless three-fifths of the state House and Senate vote for an override.
Should the bill become law, a court battle likely would ensue. The American Civil Liberties Union of Ohio already has said it would press a legal challenge.
‘Heartbeat Bill’ stays alive
On Tuesday, the Ohio Legislature sent the bill to Kasich’s desk after a day filled with legislative maneuvering.
Earlier in the day, state Sen. Kris Jordan, a Republican from Ostrander, called for an amendment that added provisions from the House-sponsored “Heartbeat Bill” to another measure, House Bill 493, that sought to streamline the process in which medical professionals report child abuse situations.
“We are a pro-life caucus…,” Jordan said in a statement. “The passage of this legislation in the Ohio Senate demonstrates our commitment to protecting the children of Ohio at every stage of life.”
The Senate voted twice: First, they approved 20-11 the decision to tack on the “Heartbeat Bill” language onto House Bill 493. After the amendment passed, the state senators passed the bill with a 21-10 vote that largely went along party lines.
Ohio state Sen. Charleta Tavares, a Columbus Democrat, had planned on voting for the child abuse bill as originally presented, but ultimately voted against it because she opposed the “Heartbeat Bill” amendment and change in language.
“I believe everyone has a right to their own body,” Tavares told CNN. “We allowed a good bill that protects the health and safety of our children to be bastardized into a government takeover of women’s wombs.”
After the bill went back the House, state representatives easily approved the revised bill 56-39 on Tuesday night. It now goes to Kasich for his signature.
How does this compare to other states’ laws?
Forty-three states currently restrict abortions, with some exceptions, by time or phase of fetal development.
Some of those states prohibit abortions after a doctor determines the fetus is viable. There’s no fixed time period in such laws, but the nonprofit American Pregnancy Association says that viability generally can begin as soon as 24 weeks.
Other states prohibit abortion after a certain time following conception — as soon as 20 weeks in some states.
Because heartbeats develop at around six weeks, Ohio’s bill appears to offer what would be the country’s shortest window for abortions.
Current Ohio law generally prohibits abortions of viable fetuses. After the start of the 20th week of gestation, an abortion may not be performed unless a physician determines the fetus does not have a reasonable possibility of living outside the womb.
Ohio’s current restriction also does not apply if a doctor determines that the pregnancy poses a serious risk to the woman’s health.
At least two other states — Arkansas and North Dakota — passed fetal heartbeat abortion laws. But those measures were found to be unconstitutional in federal court.
Where does Kasich stand on abortion?
Emmalee Kalmbach, a former Ohio Right to Life staffer who is now Kasich’s press secretary, said the governor does not typically comment on pending legislation.
Earlier this year, Kasich told CNN that he was “pro-life with the exceptions of rape, incest and the life of the mother.”
Kasich signed the state’s current viability restriction in 2011.
And earlier this year Kasich signed a bill to ban the state from contracting for health services with any organization that performs or promotes abortions — a measure widely seen as a way to defund Planned Parenthood.
The Columbus Dispatch and the Cleveland Plain Dealer have reported that Kasich expressed concerns about previous attempts to pass a “Heartbeat Bill,” including that it may not withstand legal challenges.
Mike Gonidakis, president of Ohio Right to Life, said his group is neutral on the bill because it doesn’t believe the measure would hold up in federal court.
“We believe in an incremental approach,” Gonidakis said. “When you overreach, sometimes the courts get the last say. There’s a reason why no state has a ‘Heartbeat Bill’ yet.”
Another bill in the works
This might not be the only abortion restriction law to reach Kasich’s desk this month.
Senate Bill 127 would prohibit abortions at the 20th week of gestation, except those necessary to prevent serious health problems for the woman. The Senate already has passed it, and the House may vote on it this week.
Gonidakis said he believes that bill has a greater chance of surviving court challenges, in part because other states have such a restriction.
Count on the courtroom
Tavares said she hopes Kasich would line-item veto the “Heartbeat Bill” language.
The Heartbeat Bill has been called “unconstitutional” by members of both parties in the past, Tavares said. Though it passed the state House over a year ago, it previously met opposition in the Senate. On the heels of Donald Trump’s election, momentum for the bill’s approval resurfaced.
The ACLU of Ohio tweeted, “Just a reminder, if the unconstitutional #HeartBeatBill passes and becomes law, we will challenge it in court.”
Ohio state Sen. Joe Schiavoni, a Democrat from Boardman, said the bill would lead to “expensive lawsuits” that would divert resources away from more pressing issues like the opioid crisis.
“To the taxpayers of Ohio, I am sorry that your money will have to be used to defend this bill in the court system.”
John Fortney, a spokesman for the Senate’s Republican caucus, said that “as far as the threat of abortion advocates suing, we don’t base our decisions on protecting the lives of babies on the threat of someone threatening to file a lawsuit.”
Trump and the Supreme Court
President-elect Trump has expressed interest in reversing the 1973 Roe v. Wade landmark decision that made abortion legal nationwide.
Trump will get to nominate at least one justice during his term to fill the seat vacated by Justice Antonin Scalia, who died in February. Scalia was known for dissenting opinions on abortion rights.
In an interview with “60 Minutes” last month, Trump said opposition to abortion would be a criteria for nominating justices.
“The judges will be pro-life,” he said.
But replacing Scalia with someone of the same mold alone may not change the status quo. In June, the Supreme Court ruled 5-3 against a Texas abortion access law that opponents argued would have shut down all but a handful of clinics, with perennial swing-vote Justice Anthony Kennedy joining the court’s four liberal justices.