What is the Ohio “Heartbeat Bill,” and How Did it Come to Be?

It appears that the Ohio legislature’s 8-year wish will finally come true. The controversial “heartbeat bill” is poised to go into full effect in Ohio after both chambers of the Ohio legislature passed the resolution for the third time since it was first taken to the Ohio General Assembly floor. First introduced in Ohio in 2011, the bill was twice vetoed by former Ohio governor John Kasich, and failed to garner enough votes to override the veto both times. Now, with first-term governor Mike DeWine at the helm, the bill is sure to survive.

Passed as Ohio House Bill 68 and Senate Bill 23, the “heartbeat bill” makes abortion illegal once a fetal heartbeat is detected, which could be as early as 5-6 weeks after pregnancy. The bill only permits abortion after a heartbeat is detected if a woman is experiencing a medical emergency. The bill does not provide an exception for rape or incest.

The controversial legislation was authored by Janet Porter, a pro-life activist who lobbied for the passage of the country’s first partial-birth abortion ban, and secured passage of the Woman’s Right to Know Law. Porter says she and others “literally crafted [the] legislation to be the arrow in the heart of Roe v. Wade. It is made to come before the United States Supreme Court.” Anticipating the retirement (or worse) of the Court’s aging, liberal justices, Porter is hopeful that challenges to the bill will arrive at the Supreme Court when there are additional conservative justices that will uphold the bill once it is Ohio law and, perhaps, overturn Roe v. Wade.

Decided in 1973, Roe v. Wade is the leading Supreme Court case regarding abortion. Under Roe, abortion is legally permissible until the end of a woman’s first trimester. At the end of the first trimester, states are permitted to regulate the abortion procedure “to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” Additionally, states have an “important and legitimate interest in potential life,” at the point of viability, which occurs at the end of second trimester. At that point, states can restrict abortion unless it is “necessary to preserve the life or health of the mother.” In coming to its conclusion, the Court considered American history, including the prevailing religious beliefs at the time that condemned abortion. The Court also analyzed the country’s original abortion statutes, created in the mid- to late-19^th century, which aimed to protect the health and lives of pregnant women due to the dangerousness of operating procedures at the time.

With the advent of technology and improvement in medical procedures, many of the health concerns prevalent in the 19^th century no longer exist today. Instead, states like Ohio are drafting legislation aiming to “demonstrate that [anti-abortion] laws can withstand legal scrutiny and protect the lives of the unborn.” Not only does this kind of legislation infringe upon the autonomy of women, but it comes with severe consequences to the individuals involved. Violation of Ohio’s “heartbeat bill” is a fifth-degree felony, which is punishable by a $2,500 fine and up to a year in jail. Doctors found to be in violation of the bill risk revocation or suspension of their licenses as well as refusal to reinstate their licenses. Such penalties make it easy to understand why Ohio’s “heartbeat bill” will be the country’s most restrictive anti-abortion law once it is signed into law.

Ohio is not alone in its efforts to make the “heartbeat bill” active state law. The Houses or Senates of numerous other states – including Mississippi, Missouri, Georgia, Tennessee, and Kentucky – have all passed a “heartbeat bill.” Iowa’s “heartbeat bill” was actually signed into law by its governor in 2018. However, the law was ruled unconstitutional by the Iowa Supreme Court in January 2019. Coincidentally, the ruling was issued on the 46^th anniversary of the Roe v. Wade decision. Further adding to the irony was New York governor Andrew Cuomo’s signing into law a bill that bound New York state to the Roe v. Wade protections and de-criminalized women’s access to abortions while protecting doctors who perform them. Sitting next to Governor Cuomo when he signed the bill into law was Sarah Weddington – the attorney who argued Roe v. Wade before the Supreme Court. The New York law is the strongest pro-choice legislation in the country today. Other states, such as California, Washington, and Oregon, also have enacted state law protecting abortion rights. Closer to the center of the spectrum of most restrictive and least restrictive abortion laws are the 1/3 of U.S. states who have “20-week abortion bans.”

For now, it seems that Ohio will lead the pack of states with the most restrictive abortion laws in the country. It is almost a certainty, as Governor DeWine has all but signed the “heartbeat bill” into law. When asked earlier this year if he would sign the bill into law once both chambers of the General Assembly passed the bill, the governor had this to say: “Yes, absolutely. [M]y wife . . . and I stopped by a Right to Life meeting yesterday in the Statehouse, and absolutely.”