Ohio’s Heartbeat Bill Makes the Nation’s Heart Skip a Beat

Emma Gripshover, Associate Member, University of Cincinnati Law Review

The status quo of women’s reproductive health in Ohio is under fire. As the once-vetoed “Heartbeat Bill”, H.B. 258,[1] remained on the floor of the Ohio Senate, the entire nation held its breath to see if this bill could be the first step in overturning Roe v. Wade.[2]The Heartbeat Bill, which would make abortion illegal once a fetal heartbeat is detected, was resurrected by the Ohio House of Representatives in November 2018.[3] Pro-choice advocates and physicians alike have expressed deep concern over the strict nature of the bill because a fetal heartbeat can be detected as soon as six weeks’ gestation[4] — when most women are still unaware that they are pregnant.[5] Additionally, physicians who perform abortions after a fetal heartbeat is detectable could face a fifth-degree felony punishable by up to one year in prison.[6] The impact of banning abortion after six weeks of pregnancy is that abortion will become infeasible for most Ohio women. Such a position would be contrary to current law which recognizes a right to safe and legal abortion under Roe v. Wade.[7]

This is not the first time that Ohio legislators have attempted to put strict confines around the legally cognizable rights of more than half of Ohio’s population. The same bill was proposed in 2016.[8] However, Governor John Kasich vetoed the bill on grounds that it was “clearly contrary to the Supreme Court of the United States’ current rulings on abortion” and if Ohio passed the Heartbeat Bill, “the State of Ohio will be forced to pay hundreds of thousands of taxpayer dollars” in a losing lawsuit for a facially unconstitutional law.[9]  Kasich again vetoed the bill in December of 2018, just prior to leaving office.

Why has the legislature resurrected the Heartbeat Bill now? Ohio has never been better positioned to pass such a law. With the House and Senate both controlled by Republicans and Mike DeWine joining the Republican leadership in January, pro-life legislatures are perfectly positioned to sign the Heartbeat Bill into law. In fact, in April 2018, DeWine promised to pass the bill if it reaches him.[10] He restated that promise in January of 2019. [11]

Therefore, should Ohio legislators choose to bring up the bill again, now that Governor Kasich had made way for Governor DeWine, it could potentially become Ohio law.

The Ohio Senate is currently comprised of twenty-four Republicans and nine Democrats so anti-abortion advocates should have no problem pushing the legislation through the Ohio Senate. If Mike DeWine then signs the heartbeat bill into law, abortions after six weeks of pregnancy will become effectively illegal.

Those who fear of the fate of their reproductive rights should fear not as abortion-rights groups like NARAL Pro-Choice Ohio will undoubtedly challenge the constitutionality of the Heartbeat Bill under the precedent established under Roe v. Wade  and its progeny.[12]If the Heartbeat Bill reaches the courts, there is always a chance that it will snake its way up to the Supreme Court. At the Supreme Court level, the recent appointment of Conservative Justices Neil Gorsuch and Brett Kavanaugh make the fate of the Heartbeat Bill unknown.[13] There has been much discussion about the constitutionality of abortion in the United States and this bill could be the first step to overturning of Roe v. Wade under the authority of a Conservative Supreme Court. 

[1] Heartbeat Bill, Am. Sub. H.B. 258, Sec. 2919.195, 132 Gen. Assem. (2018).

[2] 410 U.S. 113 (1973).

[3] Heartbeat Bill, Am. Sub. H.B. 258, Sec. 2919.195, 132 Gen. Assem. (2018).

[4] Fetal Development: First Trimester, American Pregnancy Ass’n (Sept. 16, 2016 7:20 PM), americanpregnancy.org/while-pregnant/first-trimester/; Heartbeat Bill Am. Sub. H.B. 258, Sec. 2919.195, 132 Gen. Assem. (2018).

[5] Christina Caron, Ohio House Passes Bill to Criminalize Abortions of Fetuses with a Heartbeat,NY Times (Nov. 16, 2018), https://www.nytimes.com/2018/11/16/health/ohio-abortion-ban-heartbeat-bill.html.

[6] Heartbeat Bill, Am. Sub. H.B. 258, Sec. 2919.195, 132 Gen. Assem. (2018).

[7] 410 U.S. 113 (1973).

[8] Heartbeat Bill, H.B. No. 69, 131 Gen. Assem. (2016).

[9] Harrington, Rebecca, Gov. Kasich Vetoes ‘Heartbeat Bill’, Signs Law Banning Abortion in Ohio 20 Weeks into Pregnancy, Business Insider (Dec. 13, 2016 4:30 PM), https://www.businessinsider.com/kasich-ohio-abortion-laws-heartbeat-bill-20-week-ban-2016-12.

[10] Randy Ludlow, Dewine Would Sign Heartbeat-Abortion Ban Vetoed by Kasich, Columbus Dispatch (Apr. 12, 2018 12:44 PM), https://www.dispatch.com/news/20180412/dewine-would-sign-heartbeat-abortion-ban-vetoed-by-kasich.

[11] Stephen Sorace, Ohio’s new governor says he’ll sign ‘heartbeat’ abortion bill that Kasich vetoed. Fox News (Jan. 24, 2019), https://www.foxnews.com/politics/ohios-new-governor-says-hell-sign-abortion-bill-that-kasich-vetoed.

[12] Kellie Copeland, Ohio Lawmakers Need to Consider the Serious Implications of Their Heartbeat Bill Vote for Ohio Women and Reproductive Freedoms, Cleveland.com (Dec. 5, 2018), https://www.cleveland.com/opinion/2018/12/ohio-lawmakers-need-to-consider-the-serious-implications-of-their-heartbeat-bill-vote-for-ohio-women-and-reproductive-freedoms-kellie-l-copeland-opinion.html.

[13] Jennifer Spinosi, The End of Roe v. Wade is Coming. But States Like Ohio Have Rolled Back Abortion for Years, NBC (Jul. 5, 2018 5:11 PM), https://www.nbcnews.com/think/opinion/end-roe-v-wade-coming-states-ohio-have-rolled-back-ncna889056.

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