Abortions in Ohio are now illegal once a fetal heartbeat can be detected.
The news came Friday evening – June 24 – in the form of a ruling from a federal court judge who lifted the nearly three-year injunction on the law following the U.S. Supreme Court's reversal of Roe v. Wade on Friday morning. Judge Michael Barrett granted the state's request to lift an injunction in place since 2019.
Dubbed the "heartbeat bill," the law criminalizes all abortions performed after the detection of fetal cardiac activity, which is about six weeks into a pregnancy (four weeks after conception).
The Ohio Department of Health doesn't track how many abortions happen at the six-week mark, but about 38% of abortions performed in Ohio in 2020 (7,866) happened after nine weeks gestation.
Patients seeking what would now be illegal abortions would not be prosecuted under this new law, but providers could face fifth-degree felony charges and up to one year in prison. The law has an exception to save the life of a patient but no exceptions for rape or incest.
(Anna Staver and Cameron Knight. “Ohio's six-week abortion ban becomes law hours after Supreme Court's Dobbs decision.” Cincinnati Enquirer. June 25, 2022.)
What does this mean? The Ohio ruling will end safe, legal abortions. Patients seeking abortions may contact clinics to get instructions on next steps, which might include going to another state. Groups like Women Have Options provide money and assistance for those seeking abortions.
What about prosecution for those who seek abortions? Ohio Republicans like Gov. Mike DeWine have consistently expressed reluctance to prosecute people who seek abortions, and Senate President Matt Huffman, R-Lima, told the USA TODAY Network Ohio Bureau that policing what Ohioans do in other states isn't likely to happen.
When is a fetal heartbeat detected?A fetal heartbeat may first be detected by a vaginal ultrasound as early as 5 1/2 to 6 weeks after gestation. That’s when a fetal pole, the first visible sign of a developing embryo, can sometimes be seen. But between 6 1/2 to 7 weeks after gestation, a heartbeat can be better assessed.
Sometimes, a so-called “heartbeat” is not detected this early because the patient may have a retroverted uterus – one form of “tilted uterus,” a category that also includes anteverted uterus, which is a uterus that is tilted forward rather than backward. In addition, a doctor may not detect a fetal heartbeat in a patient with a large abdomen. And, an ectopic pregnancy, which most often occurs in a fallopian tube, may also not be detectable.
Fetal Heartbeat – Politically Flawed Definition
But the medical-sounding term "fetal heartbeat" is being used in this law – and others like it – in a misleading way, say physicians who specialize in reproductive health.
Dr. Jennifer Kerns, an OB-GYN and associate professor at the University of California, San Francisco, says that health care providers might use the term "fetal heartbeat" in conversations with patients during this early stage of pregnancy, but it's not actually a clinical term.
"This is a term that is not widely used in medicine," Kern says. "I think this is an example of where we are sometimes trying to translate medical lingo in a way that patients can understand, and this is a really unfortunate side effect of this type of translation."
“That's why "the term 'fetal heartbeat' is pretty misleading," says Kerns.
"When I use a stethoscope to listen to an [adult] patient's heart, the sound that I'm hearing is caused by the opening and closing of the cardiac valves," says Dr. Nisha Verma, an OB-GYN who specializes in abortion care and works at the American College of Obstetricians and Gynecologists.
The sound generated by an ultrasound in very early pregnancy is quite different, she says.
"At six weeks of gestation, those valves don't exist," she explains. "The flickering that we're seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound that you 'hear' is actually manufactured by the ultrasound machine."
"What we're really detecting is a grouping of cells that are initiating some electrical activity," she explains. "In no way is this detecting a functional cardiovascular system or a functional heart."
(Selena Simmons-Duffin and Carrie Feibel. “The Texas Abortion Ban Hinges On 'Fetal Heartbeat.' Doctors Call That Misleading.” All Things Considered. NPR. May 03, 2022.)
In reality, it would be really hard for a woman to know she's pregnant before the point at which cardiac activity would be detectable by an ultrasound. She would have to be tracking her periods carefully, have regular periods, notice her period was late and then be able to quickly get an appointment with her doctor to confirm a pregnancy.
"Periods vary in length – and can be normal – from 21 to 42 days," Kaplan says, adding that "late" periods can happen for many reasons, some of which have nothing to do with being pregnant. "It can be because of stress, it can be because of changes in sleep, changes in weight, travel – all of those things can do it. We actually aggressively counsel women they shouldn't be panicked about being a week or two late."
Pregnancies are dated from the start of a woman's last period. A few weeks after that, if fertilization and implantation occur, Kern says, there's "a window of a few days, maybe a week or two at the most, where you can actually detect an intrauterine pregnancy [with an ultrasound] before you detect any kind of cardiac motion or electrical activity," says Kerns.
(Selena Simmons-Duffin and Carrie Feibel. “The Texas Abortion Ban Hinges On 'Fetal Heartbeat.' Doctors Call That Misleading.” All Things Considered. NPR. May 03, 2022.)
To add to the confusion, working women are busy, and the last thing on their list may be to schedule a pregnancy test.
John Culhane, a law professor at Widener University who co-directs its Family Health Law and Policy Institute, said the anti-abortion lobby's marketing of “heartbeat bill" legislation is “all an attempt to make a fetus into a person.”
“The ‘heartbeat,’ it literally tugs at the heartstrings, it makes you feel like, ‘Why would you do this?' Never mind that there’s not a heart” yet in the embryo, he said.
(Julie Carr Smyth and Kimberlee Kruesi. “'Fetal heartbeat' in abortion laws taps emotion, not science.” ABC News. Associated Press. May 14, 2021.)
The number of abortions performed in the state in 2019 decreased 2% from 2018, part of a steady decline that has been observed since 2001, according to the newly released abortion report by the Ohio Department of Health.
The Data
The CDC reports that in 2019 (the last year for which the CDC reported a yearly national total for abortions), women in their twenties accounted for the majority of abortions (56.9%). The majority of abortions in 2019 took place early in gestation: 92.7% of abortions were performed at ≤13 weeks’ gestation; a smaller number of abortions (6.2%) were performed at 14–20 weeks’ gestation, and even fewer (<1.0%) were performed at ≥21 weeks’ gestation.
“Early medical abortion” is defined as the administration of medications(s) to induce an abortion at ≤9 completed weeks’ gestation, consistent with the current Food and Drug Administration labeling for mifepristone (implemented in 2016). In 2019, 42.3% of all abortions were early medical abortions. Use of early medical abortion increased 10% from 2018 to 2019 and 123% from 2010 to 2019.
(Kortsmit K, Mandel MG, Reeves JA, et al. Abortion Surveillance – United States, 2019. MMWR Surveill Summ 2021;70(No. SS-9):1–29.)
Figures indicate that in 2019, 56% of legal abortions in clinical settings occurred via some form of surgery, while 44% were medication abortions involving pills, according to the CDC. Since the Food and Drug Administration first approved abortion pills in 2000, their use has increased over time as a share of abortions nationally.
The Guttmacher Institute, that compiles its figures after contacting every known provider of abortions – clinics, hospitals and physicians’ offices – in the country, says that 2020 was the first time that more than half of all abortions in clinical settings in the U.S. were medication abortions.
Conclusion
“Heartbeat legislation” or not, early medical abortions will continue to occur in Ohio. What about morning-after pills? Emergency contraception, which is taken within days of unprotected sex, will become even more important. Laws against such sale? What happens to consumerism in this case?
A wave of direct-to-consumer brands – including Wisp and Nurx – are working to make it easier to access these pills, which don’t require a prescription. Stix, a three year old startup, is the latest. Today, it’s debuting its own $38 emergency contraception pill, Restart, and launching a fund to make the pills free to women in need. It’s also rolling out billboard ads close to crisis pregnancy centers, which focus on preventing women from getting an abortion.
In May, when news broke that the Supreme Court might overturn Roe, online searches for the morning after pill surged more than 160%. Once the decision is issued this summer, there will likely be another surge, including women who are stockpiling it for the future. Wisp, a website that sells sexual health products, echoes this, saying demand for emergency contraception pills has been up by 50% since May and it’s preparing for an even greater surge if Roe falls.
Today, Stix is unveiling billboards ads located within five miles of crisis pregnancy centers in Ohio, Arkansas, Utah, Missouri, and Kentucky, which are among the states with trigger bans. These billboards will advertise Restart while also highlighting the absurdity of restricting abortion. For instance, one says, “In Ohio, a dog can legally get an abortion. But her owner is begging for reproductive rights.”
(Elizabeth Segran. “Post-Roe, the morning after pill will be crucial. Startups are racing to increase access.” https://www.fastcompany.com/90761921/post-roe-the-morning-after-pill-will-be-crucial-startups-are-racing-to-increase-access. June 21, 2022.)
To close, here's a story from Ohio about how even a mention of abortion may now cost you your job in the health field …
“When she came across a training opportunity for mifepristone, a drug used in early pregnancy loss and abortions, Jessica Warner put a mention of it in the May edition of the newsletter she compiled as a coordinator at the Ohio Department of Health.
“An hour after she hit send, her supervisor called. It was the start of an ordeal that culminated in Warner, a sexually transmitted infections and viral hepatitis training coordinator, being fired and two other employees disciplined. An investigative report prepared by human resources described abortion topics as 'off limits,' adding that 'the mifepristone item in the newsletter is in direct conflict with the agency’s mission and is an embarrassment to ODH.' It also said the topic was 'contrary' to the state’s mission.
“That a state health department would take such a stance, Warner said, came as a shock.
“I want people to understand how it seems like politics is taking over health care, and it’s less about the science and the evidence,” she said in an interview with The Washington Post five days after her termination. 'And it seems more it’s about people who have no background in health care who are making our decisions and even censoring and silencing us.'
"Ohio Department of Health spokesman Ken Gordon said there is no policy that keeps abortion topics off limits. He said references to abortion as being in conflict with the health department’s mission are based on a state law that took in effect in 2019, barring the department from contracting or affiliating with 'any entity that performs or promotes nontherapeutic abortions.'”
(Brittany Shammas. “Ohio health agency staffer fired after abortion pill mention in newsletter.” The Washington Post. June 23, 2022.)
Go figure for yourself. What is the end goal of anti-abortionists and political movements to supposedly save “hearts” of the unborn? This all-out assault on a woman's right to choose has devastating consequences, many of which are simply swept under the table and out of sight of Ohioans and their fellow Americans across the nation. In order to get a full view of the good, the bad, and the ugly, one must not be overcome by emotions or by non-medical definitions. Like every difficult issue, to be studied properly, abortion requires thorough investigation of all its possible outcomes.
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