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Ohio passed a “heartbeat bill” to ban most abortions. It won’t hold up in court.

John Kasich
If Ohio Gov. John Kasich is smart, he will veto the bill.
Melina Mara/ The Washington Post via Getty

The Ohio state legislature passed a bill Tuesday that would ban abortion before many women know they’re pregnant, and that makes no exceptions for rape, incest, fetal anomaly, or a woman’s health.

The bill bans abortion as soon as a fetus’s “heartbeat” is detected, which typically happens at around six weeks of pregnancy (but which doesn’t involve a fully developed heart until about 20 weeks of pregnancy). Six weeks of pregnancy translates to just two weeks after a woman misses her first menstrual period, which doesn’t give women much time at all to figure out that they’re pregnant and seek an abortion.

Ohio Gov. John Kasich has 10 days after the bill reaches his desk to issue a line-item veto (the bill was a last-minute addition to another bill). If he does nothing or signs the bill, it will become law.

Kasich hasn’t said yet whether he will let the bill become law. He opposes abortion, but he expressed concerns about a similar bill last year because it probably wouldn’t hold up in court. And even Mike Gonidakis, president of Ohio Right to Life, told CNN that his group is neutral on the bill for this reason. "When you overreach, sometimes the courts get the last say,” Gonidakis said. “There's a reason why no state has a 'Heartbeat Bill' yet."

A few states have tried to pass or enact “heartbeat” or similar abortion bans. Louisiana and Utah enacted abortion bans with limited exceptions in 1991. In recent years, North Dakota passed a “heartbeat” ban on abortion after six weeks of pregnancy, Arkansas passed a 12-week ban, and Arizona passed an 18-week ban.

But all of those laws were blocked by courts, and the Supreme Court refused to hear any appeals to uphold them. Roe v. Wade explicitly protects a woman’s right to seek an abortion before a fetus is viable, a basic finding that has been upheld for decades.

Apparently, though, Ohio abortion opponents have been emboldened by Trump’s election and the possibility that he will be able to appoint more than one pro-life Supreme Court justice. "I think it has a better chance than it did before” of surviving a legal challenge, Ohio Senate President Keith Faber, a Republican from Celina, told reporters after the bill passed.

Even if Kasich signs the bill into law, it will almost certainly go nowhere

The Supreme Court recently handed pro-choice advocates their biggest victory in decades by striking down two restrictive anti-abortion laws in Texas. It was such a strong pro-choice precedent, reproductive rights advocates are now suing to overturn state restrictions on abortion that have stood for decades.

The Texas case was decided with a five-vote majority — a pro–Roe v. Wade voting bloc that will remain intact even if Trump appoints an ultra-conservative ninth justice to replace the late Antonin Scalia.

The crucial fifth pro-choice vote, Justice Anthony Kennedy, personally opposes abortion and has been a bit of a wild card on reproductive health issues — but there’s no way he’d vote for an abortion ban that’s this extreme and this contrary to Roe v. Wade.

That means Ohio’s move is premature, to say the least. Proponents will have to wait until one of the five pro-Roe justices dies or retires to have any hope of a “heartbeat bill” being upheld.

It’s true that Roe v. Wade has been weakened by cases that came after it. Planned Parenthood v. Casey, for instance, made it easier for anti-abortion lawmakers to limit abortion in some ways. They can make women jump through hoops like 24-hour waiting periods, or make doctors lie to women about the risks of abortion.

But one still cannot simply pass blanket bans on abortion. The Court has been very clear on that.

Unless and until Roe v. Wade is overturned, passing laws like these will always be a grand symbolic gesture but a giant waste of time and money for states. The laws will be blocked immediately, and overturned eventually — but not before a lengthy litigation process is complete.

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