Earlier this week, the Ohio legislature passed an extreme “fetal heartbeat” bill criminalizing abortion after six weeks with no exceptions for rape, incest, or the health of the mother. On Friday, as its session drew to a close, the Republican-dominated legislature passed another anti-abortion measure, this time outlawing abortion after 20 weeks, with exceptions for the health of the mother but not for rape or incest.
This one-two punch suggests that the earlier fetal heartbeat bill wasn’t a ridiculously unconstitutional scream into the void, but rather a clever tactical maneuver. Ohio Republican Gov. John Kasich, who opposes abortion, has previously suggested that he might not sign an outright ban in light of the inevitable constitutional challenges. (When a state unsuccessfully defends an anti-abortion law, it often has to pay out huge sums in lawyers’ fees to pro-choice groups that attacked the statute.) Kasich hasn’t yet indicated his views on the fetal heartbeat bill, and it seemed to put him in a tough spot: Sign it, and he’ll lose in court; veto it, and he’ll irritate his anti-abortion supporters.
The new bill changes the political calculus in Kasich’s favor. Now the governor can veto the fetal heartbeat bill, sign the 20-week ban, and, so to speak, split the baby: Kasich can tout his anti-abortion bona fides while continuing to hone his image as a moderate.
Unfortunately for Kasich, it’s not clear whether the 20-week ban can survive constitutional scrutiny. The Supreme Court has upheld a federal law that restricted one particular method of late-term abortion. But key to the court’s analysis was the fact that the law left available another surgical procedure doctors could use to terminate a second-trimester pregnancy pre-viability. Under current precedent, the government is still barred from banning the abortion of non-viable fetuses altogether, and 20 weeks is several weeks shy of viability. Thus, the less extreme law remains constitutionally suspect.
In the last few days of its session, the Ohio legislature has also pushed through measures forbidding cities from raising the minimum wage and preventing them from restricting pet stores’ ability to buy dogs from puppy mills. It also proscribed physician-assisted suicide through a bill that would sentence any doctor who helps to end the life of a terminally ill patient to five years in prison.
