Snatching Death from the Jaws of Life

Ohio is expected to pass soon, even over the veto of Gov. Kasich, a prohibition on performing abortion when a fetal heartbeat is detected. This would generally prohibit abortions after about 6 weeks of gestation, and clearly violate the Constitutional standard enunciated by Roe v. Wade and Planned Parenthood v. Casey. The Ohio legislature is well aware of this, and the bill is explicitly crafted to go into full effect if and when the Supreme Court overturns Roe. Testing the appetite of the new array of Supreme Court Justices for overturning Roe is clearly a key aim in passing this legislation.

As someone who has extensive professional experience in legislative drafting, interpretation, and advocacy, and who has identified with and supported pro-life activism since I was a pre-teen, I think the Ohio “heartbeat bill” represents the best of pro-life efforts to pry public policy further open to life. It explicitly excludes non-uterine pregnancy (e.g. ectopic pregnancies, which are entirely unviable) and serious medical emergencies, as well as contraception. Ohio already prohibits abortions without first giving the mother the opportunity to see or hear the fetal heartbeat, except in documented medical emergencies, and gives the mother the right to sue the doctor for wrongful death if that was not done. This law, if the Supreme Court allows, would take the next step and prohibit medical professionals from proceeding with the abortion even after the mother’s heartbeat-informed consent. The offense would be a fifth degree felony (the lowest-level felony in Ohio law, often eligible for a year of community service as the penalty), in addition to the potential civil action and/or disciplinary action by the state medical board.

The Ohio heartbeat bill seems to me well-designed to preserve pregnancies that are statistically likely to result in a baby born alive. Because it is not overreaching in its penalties, it does not seem to punish women or scare doctors away from favoring the mother’s life in emergency situations. If the Supreme Court were to consider this law (a big if, to be addressed later) and decide that the right to privacy does not, in fact, shield abortion on demand before a child is developed enough to survive outside the womb, it would have a good set of facts to examine for other Constitutional concerns. Is the mother’s right to life adequately protected? Are the procedures and penalties for medical professionals fair under the 5th through 8th Amendments? Does this law impose moral standards on the general population that are idiosyncratic to certain religious sects, or does it protect human lives undeniably in being based on well-established scientific and clinical facts and evidence? This law is the perfect set for a pro-life Supreme Court, if we actually have one, to spike it.

But enter, stage right, another bill to prohibit abortion in Ohio, HB 565. This latter bill has not received a hearing, never mind a vote by the full legislature, and seems unlikely to progress any further this year. But it is co-sponsored by 18 legislators—27% of the Republican caucus in the Ohio General Assembly, where the Republicans currently hold a commanding 66 out of 99 seats. It is an anti-abortion bill, but it is not a pro-life bill by any means. Unless repudiated by mainstream pro-lifers, the mere existence of HB 565 with not-insignificant support has the potential to torpedo all hope of actually restricting abortion on demand in U.S. law.

Most of the criticism I have seen of this bill has focused on the theoretical possibility that a woman could face the death penalty for getting an abortion. Of course that is an absurdity, and one would have to imagine the United States dissolving into a dystopia in which the Constitution meant nothing at all for that to actually happen. That is not the real danger of HB 565. What is insidious and life-taking in this bill is that it shifts the Overton Window on what it means to support pro-life legislation, from the humanely secular contours of the “heartbeat bill” to the misogynistic oppression of women we now see in El Salvador.