The Ohio legislature voted this week to ban abortion at first detection of a fetal heartbeat, which is banning the procedure before some people even know they are pregnant, which is largely indistinguishable from banning all abortion. Now Republican Gov. John Kasich will sign it or veto it. Either way, the measure has done something significant.
The point of a heartbeat bill is bigger than policy. It’s also marketing. Pass or fail, it carries a message: We will never stop trying to take your body from you.
Ohio is not the first state to use a heartbeat as a milestone to ban abortion all but outright. Earlier this year, the Supreme Court rejected an appeal on Arkansas' Human Heartbeat Protection Act, a 12-week ban, leaving in place two lower court rulings that struck it down.
And it was 2014 when a federal court overturned a nearly identical six-week ban in North Dakota, citing 40 years of constitutional precedent established by Roe v. Wade. The Supreme Court had made the law clear, according to the judge’s ruling, and “this court is not free to impose its own view of the law.”
It was an inevitable outcome, really. North Dakota’s governor had signaled that it was unconstitutional even as he signed it, and the same split among anti-abortion Republicans that played out in Ohio—some liked the bill’s intent but not its brazen lack of constitutional standing, some thought go big or go home when it comes to banning abortion—happened there, too.
Even Kasich, who has signed virtually every abortion restriction that has reached his desk, indicated last year that he was skeptical of the measure on similar terms: it’s an invitation to expensive litigation. (North Dakota spent at least $200,000 to defend its legally indefensible law.)
And then as now, women put their own lives up for scrutiny to try to make a point about decency and medicine and what it means to have a hand on the levers of your own life.
While the bill was debated in Ohio in 2015, state Rep. Teresa Fedor, a Democrat from Toledo, joined the list of female lawmakers who openly shared their own abortion stories in the hope of wringing some humanity out of their colleagues.
Fedor, who became pregnant after being raped, and chose to terminate the pregnancy, said on the House floor: “You don’t respect my reason, my rape, my abortion… What you are doing is so fundamentally inhuman, unconstitutional, and I’ve sat here too long.”
Now it's a question of what happens next, and why this go-round might be different even through we've seen this before. If Kasich makes good on his earlier skepticism and vetoes the bill, then it will die. But it’s also possible that the Legislature will try to send it back up again.
Times are changing, after all.
“A new president, new Supreme Court appointees change the dynamic,” Ohio Senate President Keith Faber, a Republican from Celina, told the Columbus Dispatch when asked about the timing of the amendment. “And there was consensus in our caucus to move forward.”
The message has always been the message. But the magical thinking of anti-abortion lawmakers—a state will introduce an abortion ban that has been struck down elsewhere because maybe it will stick—has become more rooted in shifting political realities.
If Donald Trump holds to his word and appoints Supreme Court justices who will reopen Roe, then even the paper-thin constitutional protections in place right now become vulnerable. And states like Ohio, unshackled from that legal precedent, may pass six-week bans, or total bans, without fear of a costly battle in court.
And so an embryo in Ohio could gain legal personhood at six weeks. And at six weeks, women could lose theirs.