An Ohio bill that would ban abortion after a fetal heartbeat was detected made headlines last week, while another Ohio bill that would ban abortion after 20 weeks was relegated to somewhere farther down the page. Gov. John Kasich (R) vetoed the first and signed the second. You’d expect the first bill to be worse, and it is. But the second is the bigger threat.
Anti-abortion advocates heralded the so-called “heartbeat” bill’s passage through the state legislature as a sign of a turning tide. With Donald Trump headed to the Oval Office, they can expect at least one pro-life justice to join the Supreme Court bench — and cast a vote to overturn Roe v. Wade. And for Ohio’s legislature, that was reason enough to pass a bill that almost certainly ran afoul of the Constitution today: Soon enough, maybe it wouldn’t.
It’s concerning enough that Trump’s win told Ohio lawmakers it was okay to try to stop women from getting abortions before many realize they are pregnant.
But here’s the rub: In the post-Trump political landscape, these laws look less absurd and more menacing. That makes proposals such as the 20-week ban appear modest in comparison — compromises, even. And these are the laws that have the clearest shot at taking down Roe and what has come after it.
That’s why Gov. John Kasich (R) — a passionate anti-abortion advocate — vetoed the heartbeat bill and passed its closer-to-constitutional companion. A law without an exception for rape or incest that stops a woman from getting an abortion at 20 weeks, before an ultrasound can detect some of the most common fetal abnormalities and before scientific consensus says the fetus could survive outside the womb, is far from modest. But next to the heartbeat bill, it starts to seem that way.
The heartbeat bill wouldn’t have held up in court. The 20-weeks prohibition, on the other hand, already exists in 15 other states. (Ohio is the 19th to adopt the policy, but courts in three have blocked them.) It comes into conflict with Roe’s guarantee of the right to an abortion until a fetus could survive outside the womb – which scientists say usually happens around 24 weeks. But the viability rule has always had its critics, and to anti-abortion advocates today it’s the perfect target: What looks like nibbling at the edges of an already-arbitrary stricture is actually a way to chip at the bedrock of abortion jurisprudence. This model has been the cornerstone of a quieter campaign to ban all abortion in the long term.
At the moment, incrementalist bills are the real risk Roe faces. They’ve flown under the radar before, but today — with brazen alternatives like the heartbeat bill around to scare us into looking the other way — they may do one better. After all, Kasich was lauded for vetoing the heartbeat bill, not criticized for signing the 20-week ban. That ban and its ilk may survive judicial scrutiny until, perhaps, a challenge makes it to a high court with one of the newly appointed pro-life justices Trump has promised. And if the court rules then to strike down Roe, the pump will be primed for heartbeat bills aplenty. Anti-abortion absolutists may finally win. And women everywhere will lose.