Ohio’s New Abortion Bill Is a Sign of Battles to Come

Updated at 9:07 p.m. EST

Ohio’s legislature recently passed what would have been the most restrictive abortion law in the nation: a ban on aborting fetuses with a detectable heartbeat, which develops as early as six weeks into a pregnancy. On Tuesday, Governor John Kasich vetoed the provision, arguing that it would be struck down in court. “The state of Ohio will be forced to pay hundreds of thousands of taxpayer dollars to cover the legal fees for the pro-choice activists’ lawyers,” Kasich said, according to the Associated Press. “Therefore, this veto is in the public interest.” The Ohio legislature could still override the governor’s veto, although that would require three-fifths of both the state House and Senate, a threshold that was reached in the Senate on its final vote, but wasn’t quite reached by the House in its final concurrence vote.

Kasich, who is pro-life and has long been supportive of anti-abortion legislation, did sign off on another abortion restriction, though. A separate measure bans abortion 20 weeks after fertilization—roughly equal to 22 weeks after the date of a woman’s last menstrual cycle, which is the time measurement most doctors use. Previously, state law banned the procedure starting 24 weeks following a woman’s last menstrual cycle, with exceptions for the life and health of the mother; starting 20 weeks into her pregnancy, a doctor had to certify that the fetus was not viable before performing the procedure. Ohio’s new, stricter standard is uncommon, but not rare—about a dozen states have similar measures in place. The logic behind this standard is that fetuses are capable of experiencing pain at that point in a pregnancy, a claim that has been contested by some doctors.

Kasich is likely right that the heartbeat provision would have been struck down in court. It defies the standards set out in the Supreme Court cases Roe v. Wade and, later, Planned Parenthood v. Casey, which clarified that blanket restrictions on abortion are only permissible after viability, or the point when a fetus could survive outside a mother’s womb. This is not a fixed number—a few premature babies have lived after delivery as early as 22 weeks into their mother’s pregnancy. Ohio’s new law, along with similar laws in other states, set the threshold for abortion bans even earlier than this, which has made these provisions controversial. But in reality, they affect few women: According to the Centers for Disease Control and Prevention, the vast majority of abortions happen within the first 13 weeks of a pregnancy. A six-week restriction, by contrast, would have altered the current threshold radically and affected many more women.

Ohio lawmakers are likely familiar with these legal precedents, yet they approved the measure anyway. Christina Hagan, the 28-year-old Republican legislator who pushed the heartbeat provision forward, told The New York Times that Donald Trump’s election changed the sense of possibility within the legislature, which suddenly took up the bill in early December after stashing it in committee for months this fall. “I honestly could not have foreseen this victory a week or a month ago,” Hagan told the Times.

While Trump cannot singlehandedly change legal standards on abortion, he does have control over the people who can: judges. If Trump consistently appoints pro-life judges to the federal bench, as he promised he would on the campaign trail, and if he selects one or more pro-life Supreme Court justices, he could change the thinking of political leaders like Kasich—it may seem more possible to win litigation in defense of anti-abortion measures.

As pro-life legislators across the country look ahead to their new legislative sessions, they may be thinking along these lines. For a long time, state-level abortion battles have been fought at the margins. Like Ohio, states have incrementally pushed back the number of weeks associated with abortion bans. Or, like Texas, they have attempted to regulate health-and-safety standards for the procedure—an effort that was struck down this summer by the Supreme Court. Ohio’s so-called heartbeat bill was a tactical maneuver of a different sort: It directly defied previous legal standards and would have potentially affected a large number of women. With a new administration—and the imminent prospect of a very different federal judiciary and Supreme Court—these efforts aren’t looking as symbolic as they once might have been.