Total Eclipse of the Fetal Heart

By the end of July, it was clear opponents of abortion were going to have a banner year. In the first half of 2013, state legislatures across the country enacted dozens of restrictions on abortion clinics that will slim their hours or shutter them completely. States like Wisconsin and Indiana added requirements like ultrasounds and waiting periods for women seeking the procedure. After a high-profile debate, Texas passed a law that bars abortion after 20 weeks, bringing the total number of states with similar bans to 11.

The show’s far from over. Earlier this month, at a press conference that featured the Duggar family of 19 Kids and Counting fame, two Ohio state legislators announced they were restarting the fight for one of the most restrictive abortion laws in the country. House Bill 248, generally known as the “Fetal Heartbeat Bill,” was introduced on August 22 in the House Committee on Health and Aging, chaired by the bill’s co-sponsor, state representative Lynn Wachtmann.

This isn’t the first time a fetal-heartbeat bill has been introduced in the Ohio legislature. In 2011, the House approved a similar bill but it failed after Senate President Tom Niehaus, a Republican, refused to bring it to the floor for a vote. Then as now, Republicans have a super-majority in the Ohio legislature. This year, though, there’s a crucial difference: Niehaus retired at the end of 2012 because of term limits. New Senate president Keith Faber’s website brags that he “drafted, sponsored, and voted for every pro-life measure” during his tenure in the Ohio General Assembly. 

Some of the 2011 bill’s less extreme provisions—including one requiring doctors to check for a fetal heartbeat before an abortion procedure and allow women to hear or see the heart beat—passed earlier this summer in the state budget bill, which included a wide range of anti-abortion measures. It cut funding for family-planning providers and diverted money from crisis-pregnancy centers. Ohio Governor John Kasich signed the budget without objecting to any of these restrictions, signaling that he’s unlikely to reject the heartbeat bill out of hand.

The bill introduced last week prohibits abortions performed after a fetal heartbeat is detected—and doesn’t include exceptions for pregnancies that result from rape or incest, or that threaten the health of the mother. Depending on the type of ultrasound equipment used, a fetal heartbeat can be usually be heard in the first six to eight weeks of pregnancy.

“At six weeks, many women don’t even know that they’re pregnant,” says Celeste Ribbins, a spokesperson for Planned Parenthood of Greater Ohio. “So by the time a woman knows that she’s pregnant, it may already be too late to terminate the pregnancy.”

Nearly nine-in-ten abortions take place in the first trimester, so this bill would criminalize the vast majority of Ohio’s abortion procedures.

Under Roe v. Wade, the 1973 Supreme Court decision legalizing abortion, women are free to terminate a pregnancy until the fetus can live on its own outside the womb. This is interpreted to permit elective abortion until after 24 weeks. State Representative Christina Hagan, a Republican, says the detection of a heartbeat should be the new marker for fetal viability. “The heartbeat is used to define death,” says Hagan, who was the bill’s other co-sponsor. “Why shouldn’t it be used to define life?”

Erika Levi, a practicing obstetrician-gynecologist in New York City, says that from a medical perspective, shifting the standard of viability makes no sense. At six weeks, a fetus is still technically an embryo. It's smaller than a dime, and its heartbeat is just a flicker on an ultrasound machine. Doctors can’t test for fetal abnormalities until much further in its development—sometimes as late as 20 weeks. “It would completely change the calculation of how we understand caring for risky pregnancies,” says Levi. “If we were to define the fetus as viable around six weeks, the fetus would always be a higher priority than the woman.”

The heartbeat legislation’s first test will be surviving the state’s fractious pro-life factions. The 2011 bill quickly became a symbol of a growing divide within the pro-life movement between establishment groups like Ohio Right to Life that favor incremental efforts, and more radical upstarts like Faith2Action, the organization backing the current iteration of Ohio’s fetal-heartbeat bill. Members of the pro-life establishment prefer strategies that chip away at abortion access, like the 20-week abortion bans or regulation of abortion clinics. Their more militant peers, meanwhile, are deliberately writing and supporting legislation that contradicts constitutional precedent. In 2011, Ohio Right to Life distanced itself from the heartbeat bill, calling it a futile, expensive endeavor that would not hold up in court. This created a schism: Several indignant state chapters withdrew from the organization and formed a second group called Prolife Action to advocate for the heartbeat bill.

Ohio Right to Life has yet to issue a statement on the newly-reintroduced bill, suggesting that their qualms about the constitutionality of the legislation have not been resolved. Mike Gonidakis, the president of Ohio Right to Life, says the organization is currently focused on adoption-reform legislation. He lauded the restrictions on abortion in the budget bill but refused to comment on the new legislation, which he says he has not read. Hagan hopes grassroots support will convince pro-life legislators to vote for the heartbeat bill, even without the institutional weight of organizations like Ohio Right to Life. “We have a good amount of pro-life legislators in the statehouse, and their constituency expects them to protect the sanctity of human life,” she says. “It’s a difficult road to travel, but we hope we will be rewarded.”

If the bill makes its way through the Ohio General Assembly and John Kasich signs it into law, it will almost certainly face a court battle. In North Dakota, the only state where fetal-heartbeat bill has successfully passed, a federal judge blocked the law before it could be enacted, calling it “clearly invalid and unconstitutional.” Another federal judge issued an injunction against a slightly less restrictive Arkansas law, which banned abortions after 12 weeks if the doctor detected a fetal heartbeat. Ohio’s law will probably meet a similar fate—the question is whether the Supreme Court would allow the federal ruling to stand, or if the justices would agree to hear the case.

Supporters of the fetal-heartbeat bill are making a calculated gamble. If Anthony Kennedy, the Supreme Court’s swing vote, is open to persuasion on the issue of fetal viability, a decision from the Justices could alter the decades-old standard on elective abortion and open the door to total bans. If the Supreme Court isn’t ready to change the legal measure for fetal viability, the strategy could backfire—and badly. “If the heartbeat regulations are more than the court is willing to give, it would be an occasion to reaffirm the basic provisions of Roe,” says Marc Spindelman, a professor of law at Ohio State University. “That would make further pro-life reform more difficult. The timing really matters, and the worry is that you don’t want to revitalize the very regime that you’re struggling against.”

In 2011, supporters of the fetal-heartbeat bill brought a pregnant woman into a committee hearing and projected a color image of her fetus onto a screen to “testify” in favor of the bill. They also sent heart-shaped balloons and teddy bears to legislators’ offices (most were returned) and flew banners over the statehouse. Impending shenanigans aside, the law has a better chance of passing than ever before. “Because of Governor Kasich’s unprecedented attacks against women’s health care, the women of Ohio are in a very precarious position,” says Jerid Kurtz, communications director for the Ohio Democratic Party. “They need to take the threat of the fetal-heartbeat bill seriously.”

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