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Ohio Legislature sends Gov. 20-week abortion ban; op-ed says lawmakers 'jumped the gun' with six-week ban

The Ohio Legislature on Thursday sent to Gov. John Kasich (R) legislation (SB 127) that would ban abortion at 20 weeks, The Hill reports (Wilson, The Hill, 12/8).

Bill prospects

The bill passed in a 64-29 vote in the state House and a 23-8 vote in the state Senate. The state Senate previously approved an earlier version of the bill, but the chamber voted on it again after the state House revised the measure. The bill includes a limited exception when the woman's life is in danger; it does not include exceptions for instances of rape or incest (Palmer, Reuters, 12/8).

According to The Hill, Kasich is likely to sign the measure into law (The Hill, 12/8). However, courts have struck down similar 20-week abortion bans in Arizona and Idaho as unconstitutional (Reuters, 12/8).

Ohio lawmakers push abortion bans

The measure follows a separate abortion ban (HB 493) that state lawmakers sent to Kasich earlier this week. Under HB 493, abortion care would be prohibited when a fetal heartbeat is detectable, which can be as early as the sixth week of pregnancy.

Kasich, who opposes abortion rights, has not said whether he will sign that measure. He has previously voiced concerns that such a ban is unconstitutional. Courts have overturned similar bans in Arkansas and North Dakota, and the Supreme Court in January declined to review the rulings. However, despite rejecting similar proposals in past legislative sessions, Ohio lawmakers said they voted to advance the "heartbeat" ban in light of President-elect Donald Trump's pledge to appoint abortion-rights opponents to the Supreme Court, making it more likely that the proposed ban could withstand a legal challenge (Women's Health Policy Report, 12/8).

Comments

Mike Brickner, a senior policy director at the American Civil Liberties Union, criticized both the 20-week ban and six-week ban as unconstitutional. "Bans such as these only hurt women and their families and waste taxpayer dollars by defending laws that federal courts have routinely declared unconstitutional," Bricker said, adding, "Governor Kasich should veto any bill that infringes upon reproductive freedom."

Separately, Gabriel Mann, a spokesperson for NARAL Pro-Choice Ohio, condemned both the proposed abortion bans. "Passing both anti-abortion measures in a lame-duck session is political maneuvering," Mann said, noting that Kasich could veto the six-week ban but approve the 20-week ban as a way to appear more moderate (Reuters, 12/8).

Op-ed: Abortion-rights opponents 'probably jumped the gun' with Ohio 'heartbeat' ban

In related news, Mary Ziegler, a professor at the Florida State University College of Law, in an opinion piece in the Washington Post's "PostEverything" explains how abortion-rights opponents, propelled by Trump's election to the presidency, "probably jumped the gun" with the Ohio six-week ban.

Citing the Supreme Court's recent ruling striking down unconstitutional restrictions in Texas' omnibus antiabortion-rights law (HB 2), she explains, "While Ohio's [six-week ban] was apparently intended to take advantage of a changing [Supreme Court] under Trump, there's no guarantee that strategy will work out."

Ziegler acknowledges that "the law portends dark times ahead for abortion rights activists, who have plenty of reason to expect an increasing number of attacks on abortion," noting that Trump "has a chance" to appoint antiabortion-rights justices to the high court. Nonetheless, she explains that "whether that happens will depend on any number of unknown variables: the retirement or death of sitting justices, the loss of conservative as well as liberal members of the court, even Trump's ability to predict how a nominee will vote." Ziegler points out that "the decision that saved Roe the last time, Planned Parenthood v. Casey, depended on the votes of [conservative] nominees Sandra Day O'Connor, David Souter and Anthony Kennedy."

Further, Ziegler states, "[E]ven assuming that Trump picks a judge who cannot wait to overrule Roe v. Wade, Ohio lawmakers still probably jumped the gun." She explains, "An additional vote to overrule Roe would probably leave the court divided, with a majority in favor of preserving legal abortion." For instance, she notes that Kennedy in the Texas ruling "just joined an opinion making it harder for legislators to restrict abortion at all, much less ban it outright for most of pregnancy."

Ziegler also draws attention to what Trump's election means for abortion-rights opponents' use of "an incremental attack on abortion rights" that "requires the states to pass laws limiting access to abortion in a way that does not openly conflict with Roe v. Wade."

Ziegler writes that while "incrementalism has been ascendant for three decades, and Trump's election has not immediately persuaded leading groups to abandon it," Trump's presidency could "empower those in the antiabortion movement who are frustrated by the slow pace of change." She points out that following the November elections, conservative lawmakers "control Congress and many state legislatures" and "the composition of the court seems to be up for grabs."

Yet "if 2016 has taught us anything, it should be that nothing is as certain as it seems," Ziegler writes. She concludes, "[I]f the past year has given us any indication, anyone in the abortion battle confident that the momentum has shifted stands a good chance of being wrong" (Ziegler, "PostEverything," Washington Post, 12/9).