The Life of a Heartbeat Bill
On Feb. 12, several state legislators introduced a bill that would give Ohio one of the strictest abortion mandates in the country, outlawing non-emergency abortions as soon as a fetal heartbeat is detected, which is usually around the sixth week of pregnancy.
The introduction of this “heartbeat bill” comes about a month after Republican Gov. Mike DeWine, who voiced his support for such a bill, took office. In December 2016, Gov. John Kasich turned down House Bill 493, the first of the heartbeat bills to hit his desk, and instead signed Senate Bill 127, which banned non-emergency abortions after 20 gestational weeks.
Nearly two years later, Kasich vetoed House Bill 258, the legislature’s second attempt at a heartbeat bill during his tenure. Instead, Kasich signed a proposal prohibiting dilation and evacuation, a widely-used abortion procedure.
Shortly after, Senate Republicans came up one vote shy of overriding Kasich’s veto and restoring the heartbeat bill.
Kasich vetoed those bills on the grounds that they went against prior decisions made by the Supreme Court and would inevitably be struck down by federal courts, only after a costly legal battle for the State.
S.B. 23, like the vetoed heartbeat bills before it, generally prohibits a person from performing an abortion if a fetal heartbeat is detected. It allows abortions to be performed in the absence of a fetal heartbeat or in the case of medical emergencies, but it does not make exceptions for cases of incest or rape.
The bill’s primary sponsor, Sen. Kristina Roegner (R-Hudson), argues that using a uniform benchmark to determine the viability of a fetus is critical for understanding when life should be protected under the law. She suggested that the concept of viability, as pertaining to a fetus, has changed over time — and in the time since 1973’s Roe v. Wade. Thus, so should the definition of viability under constitutional law.
Ohio’s current standard allows a physician to determine whether a fetus is viable or not based on its ability to maintain life outside the womb with or without medical support.
During the bill’s first hearing before the Senate Health Committee on Feb. 13, Roegner argued for a new standard in determining viability. “If government exists to protect the weak and vulnerable,” she said, “then the point at which government should begin extending that protection should be objective, clear, and universally applicable.”
Sen. Nickie Antonio (D-Lakewood) takes issue with the bill for its restrictive time frame, and she refutes the need for a new standard that would take away the ability for women to make their own personal decisions.
“I identify myself as being someone who believes — and is — pro-choice because I don’t believe I, or anyone else, can make this kind of decision for someone else,” Antonio said.Additionally, Antonio is wary of the cost the state would bear in an unfavorable legal challenge.
“This bill and bills like it across the country will create a constitutional challenge,” Antonio said. “When the state takes on that challenge, there is a cost.”
Of course, the opposing sides of a heartbeat bill aren’t confined to the Senate. The Senate’s Health Committee received word from many representatives from special interest groups and interested Ohioans on both sides of the debate.
The Rev. Dr. Marian Stewart, a pro-choice clergywoman, denied the heartbeat bill’s roots in religion and asked the committee, “In this year when women celebrate the 100th anniversary of the right to vote, are you telling us we don’t have a choice when it comes to our bodies?”
Janet Porter of Faith2Action, who introduced the nation’s first heartbeat bill to Ohio back in 2011, said that the current political environment in the state and the nation is perfect for a heartbeat bill to pass, citing a willing governor and the approval of Justices Gorsuch and Kavanaugh to the Supreme Court.
“The bill is right,” Porter said in a letter to the committee. “The votes are there. The Governor will sign it. The time to pass the Heartbeat Bill is now.”
S.B. 23 passed through the Senate on March 13 by a vote of 19-13.
All nine Senate Democrats, including Antonio, voted against. Four dissenting Republicans did the same, including Sen. Matt Dolan (R-Chagrin Falls).
“I voted no,” Dolan said, “because I didn’t believe that that bill would successfully withstand a court challenge and [thus would] move the pro-life movement even further backwards.”
Dolan said that the heartbeat bill would likely be blocked by the courts because it lacks an exception for rape or incest and that it would “forbid the woman any options before she even knew she was pregnant.”
“I just don’t think the bill is the method to get the [Supreme] Court to revisit Roe v. Wade,” Dolan said. “I could be wrong, but that’s why I voted no.”
After the Senate grants passage, a bill lands on the House floor, where it receives further consideration from the chamber and its pertinent committees. In this case, S.B. 23 was introduced to the House of Representatives on March 14 and referred to the Health Committee five days later.
However, this isn’t the first time a heartbeat bill was heard in the House in 2019. February 26 saw the first hearing for House Bill 68, a nearly identical heartbeat proposal from Rep. Ron Hood (R-Ashville) and Rep. Candice Keller (R-Middletown).
Keller highlighted Ohio’s oft-cited impact on the nation’s political course and urged the state to reaffirm itself as a pro-life leader in response to the “condoning” of “virtual infanticide” in New York, Vermont and Virginia. Hood’s tone was similar: “The time is now to stem the tide of death and save beating hearts with this bill.”
H.B. 68 has yet to progress past the first hearing in the House’s Health Committee. However, that same committee takes its turn on March 26 to bring in proponents and opponents alike to hear their testimonies on S.B. 23.
Antonio, who now sits on the Senate’s Health Committee, had previously spent eight years as a representative in the Ohio House. She, along with Dolan, believes the bill will ultimately make it out of committee, be approved by the House and then promptly sent to Gov. DeWine.
This would be the third heartbeat bill to land on the desk of an Ohio governor since 2016, and the one that will likely finally be signed into law.
S.B. 23 would go into effect 90 days after DeWine’s approval but would likely be blocked by a federal court’s mandate before it could take effect, said Jessie Hill, a professor at Case Western Reserve University’s law school.
“Every court that has considered one of these [heartbeat bills] has struck it down because the existing precedent is very clear,” Hill said.
Should the bill be blocked, the state would have an option to appeal, which would then move the case to the 6th Circuit US Court of Appeals. Another unfavorable decision for the state would likely prompt another appeal, which could only be heard by the SCOTUS. However, the Supreme Court would have to voluntarily take the case, which it has yet to do for any previous heartbeat bills.
Hill says that, while existing precedent is clear, it’s fairly unclear whether the Supreme Court would choose to hear this case, and what the ultimate decision would be.
However, Dolan thinks the future of the bill is more clear: “I think the courts will look at it, and I have a feeling they will strike it down. And that will be consistent with what other courts have done, thus there will be no conflict amongst lower courts and it won’t go anywhere.”