Friday, December 9, 2016

Heartbeats and Abortion in Ohio -- Essential Information About the Law


It's called the “heartbeat” bill. It has passed the state House and Senate in Ohio. The bill will now go to Republican Governor John Kasich to either sign into law or veto within 10 days. If he signs it and it takes effect, this would be the shortest window for abortions to be performed in the United States.

This proposed law is known as the “heartbeat” legislation because it bans abortion once a heartbeat can be detected in a fetus. Senate President Keith Faber said the bill has been defeated twice in the past in the Senate but was revived after Donald Trump's presidential victory.

The passage came this time as a last-minute attachment to a child abuse-related bill being considered in the lame duck session. That’s what angered Democratic State Senator for the 15th District and Assistant Democratic Leader Charleta Tavares. She said,“It bastardizes the child abuse and neglect bill because it is taking away the safety and security of children.”

(Jo Ingles. “Ohio Legislature Passes Controversial Heartbeat Bill.” Ohio Public Radio. December 07, 2016.)

Medical experts say the bill affects a fetus on average around six weeks gestation into a pregnancy. The bill has no exception for cases of rape or incest.

The Supreme Court has held for over forty years that states cannot ban abortion before a fetus is viable, around 24 weeks. And, similar measures have already been struck by federal courts in two other states: North Dakota and Arkansas.

"We've been fighting this for about five years now," said Kellie Copeland, Executive Director of NARAL Pro-Choice Ohio. "We've always been able to bottle it up in the Senate." Not this time.

(Emily Willingham. “Ohio 'Fetal Heartbeat' Law Fails On Science And Humanity.” Forbes. December 07, 2016.)
Two Pieces of Legislation

On December 9, Ohio lawmakers also sent a second anti-abortion measure to Governor John Kasich. The Ohio legislature voted 64-29, mostly along party lines, to advance Senate Bill 127, legislation that would ban abortions after 20 weeks.

President of Ohio Right to Life Mike Gonidakis said, "I know everyone is swept up in Trump mania, but we have to be realistic. When you overreach, you lose. The courts can be very vicious to you."
Ohio Right to Life's preferred vehicle for chipping away at Roe v. Wade is a ban on abortion at 20 weeks, mirroring the priorities of the National Right to Life Committee, which has championed such a ban at the federal level.

While Ohio Right to Life is officially neutral on the heartbeat bill, having outright opposed it in the past, Gonidakis said of Ohio Governor John Kasich, "I know we hope he signs the 20 week ban because we think it'll be a game changer for the pro-life movement."

Nationally, Kasich has sought to present himself as a moderate. He has previously voiced concerns about whether such a move as the “heartbeat” law is constitutional. He reportedly told CNN in August, referring to abortion, that Republicans "focus too much on just one issue." Many believe if Kasich vetoes the heartbeat bill while quietly signing a 20 week ban into law, he would seemingly take the more measured path.

(Irin Carmon. “Is Ohio 'Heartbeat' Bill a Feint Before More Successful Blow to Women's Rights?” NBC News. December 08 2016.)

Concerns About the Heartbeat Law

Emily Willingham, author and Forbes contributor, explains the penalties under the “heartbeat” law ...

If a physician fails to check for a fetal heartbeat or performs an abortion when a heartbeat is clearly heard, the doctor would be 'guilty of a fifth-degree felony.' This felony, according to The Columbus Dispatch, would be punishable by up to one year in prison and the physician could face a civil lawsuit from the mother as well as disciplinary action.

Under the law, abortions would be allowed only if the woman is at risk of death or 'substantial and irreversible impairment of a major bodily function' (does personal autonomy fall under that?). Women would have to sign a form confirming an understanding that the embryo or fetus (called the 'unborn human individual' in the language) has a fetal heartbeat.”

(Emily Willingham. “Ohio 'Fetal Heartbeat' Law Fails On Science And Humanity.” Forbes. December 07, 2016.)

Willingham believes the law redefines terms for its own purposes. It claims that a fetus is "the human offspring developing during pregnancy from the moment of conception and includes the embryonic stage of development," which would conflict with views of developmental biologists and obstetricians.

And, gestational age is defined as “the age of an unborn human individual as calculated from the first day of the last menstrual period of a pregnant woman.” Willingham contends that since this way of measuring pregnancy starts two weeks before conception, this law essentially says that "an unborn human individual" can be minus two weeks old, existing before even the first cell does.

Christy Osler of USA Today speaks of some major concerns for pregnant women under the “heartbeat” bill.

Osler acknowledges the ban would likely take effect before many women even know they are pregnant. Since for many women, it takes a missed period — or even two — to realize they could be pregnant, that could place them about six to eight weeks into their pregnancies, which is too late to get an abortion under the “heartbeat” bill.

Osler also points out ...

Even if some women with unwanted pregnancies discover they are pregnant before the six weeks, they still might not be able to schedule an abortion for one of two major reasons: there are very few abortion clinics in Ohio – nine, currently – so women may have to wait for appointments, and state laws require women in Ohio to first have an informational meeting with a physician about the abortion – and then wait 24 hours after that appointment to have the actual procedure done.”

(Christy Osler. “7 things to know about the Ohio 'heartbeat bill.'” USA Today. December 08, 2016.)

Law Under the Supreme Court

In the light of Ohio considering passage of the “heartbeat” bill, it is important to consider the Supreme Court's rulings on abortion. It is imperative that both proponents and opponents of any legislation restricting a woman's right to an abortion understanding the legality. The Court ruled 7–2 that a right to privacy under the Due Process Clause of the 14th Amendment extended to a woman's decision to have an abortion, but this right must be balanced against the state's two legitimate interests in regulating abortions: protecting women's health and protecting the potentiality of human life.

Roe v. Wade (1973) ruled unconstitutional a state law that banned abortions except to save the life of the mother. The Court ruled that the states were forbidden from outlawing or regulating any aspect of abortion performed during the first trimester of pregnancy, could only enact abortion regulations reasonably related to maternal health in the second and third trimesters, and could enact abortion laws protecting the life of the fetus only in the third trimester. Even then, an exception had to be made to protect the life of the mother.

Because abortions lie within a pregnant woman's "zone of privacy," the abortion decision "and its effectuation" are fundamental rights that are protected by the Constitution from regulation by the states, so laws regulating abortion must be sufficiently "important."

The Court ruled that narrower state laws regulating abortion might be sufficiently important to be constitutional. For example, because the medical community finds that the human fetus might be "viable" ("capable of meaningful life") outside the mother's womb after six months of growth, a state might constitutionally protect a fetus from abortions in the third trimester of pregnancy, as long as it permitted an exception to save the life of the mother.

Additionally, because second- and third-trimester abortions present more health risks to the mother, the state might regulate certain aspects of abortions related to maternal health after three months of pregnancy. In the first trimester, however, a state's interests in regulating abortions can never be found "important" enough. Such abortions are thus exclusively for the patient and her doctor to govern.

(Alex McBride. “Roe v. Wade (1973).” The Supreme Court: Landmark Cases. Public Broadcasting System. 2006.)

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