I had been planning to write a stirring defense of bureaucracy for my Thursday politics post. But then I came across this link about Ohio’s “heartbeat bill” on my tumblr dash and had to pause for a moment while my brain exploded. Somehow in all the hubbub of budget nonsense these past couple of weeks, I missed the stories about Ohio House Bill 125, which would make abortion illegal in the state of Ohio after a fetal heartbeat can be detected, which can happen as early as the sixth or seventh week of pregnancy. If passed, this would give Ohio the most restrictive abortion laws in the country.
Now, I am not a lawyer, but the Roe v. Wade decision asserted:
Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid.
What’s most interesting about Ohio HB 125 is that up until this point, the most effective strategies on the anti-choice side have been to eliminate funding streams for abortion services, regulate the method of abortion delivery, and debate the definition of when a fetus may be “viable” outside the womb. This bill would be one of the first major pieces of legislation I can think of that attacks the Roe v. Wade decision head on rather than from the sides.
The Hyde Amendment has prohibited the use of federal public funding for abortions since the mid-1970s, although some clinics still receive some state funding for abortions. As we’ve talked about here on Persephone extensively, anti-choice activists on the right are also pretty skilled at using the argument that “Planned Parenthood provides abortion services,” to justify cutting funding, even though that money is going to other health care resources, and have fought to keep insurance companies from covering abortions. This has been a really effective strategy because it doesn’t tread on the legal precedent at all. Women can still legally obtain abortions if they want, but this process makes it more inconvenient (no clinics available due to lack of funding) or financially prohibitive for the women.
Regulating methods and procedure is a fine line to tread, but it’s still easier than trying to outlaw all abortion outright. Anti-choice activists simply fight make it more difficult to obtain abortifacient drugs, give more hurdles for underage women to jump through, and outlaw particular surgical methods without banning all abortion outright. There’s more resistance to this than the funding strategy, but as long as there are still opportunities available on paper, they’re adhering to the letter of Roe v. Wade, if not the spirit.
The last strategy has really been an attack over semantics of what “viability” truly means, which is a harder battle to fight. As science advances, the ability to provide life-saving medical treatment pushes the timeline of when a fetus can survive outside its mother’s body ever further. That’s not to say this is a bad thing. For women with wanted pregnancies who go through medical distress or otherwise have babies born prematurely, these life-saving techniques are truly miraculous. But they have also allowed anti-choice activists to argue that a fetus can be viable after not just 28 weeks, but 25 or even earlier because it is theoretically possible without considering the quality of life that those fetuses might have or what doctors might recommend.
You might argue that Ohio HB 125 is just playing at the edges of this debate, and it’s no different from the arguments in Idaho, Iowa, and Nebraska trying to push “viability” back to 20 weeks. But despite a heartbeat, there is pretty much no chance that someone born at seven weeks of gestational development would survive outside the mother’s body, regardless of our advances in medical science. According the Mayo Clinic, a fetus is not even technically considered a “fetus” until the eleventh week of pregnancy. At seven weeks, it is still an embryo and is about the size of a blueberry; limbs are still flippers, eyes are not fully formed, genitals do not exist yet, and the fetus has not yet begun to produce its own blood, among other things. In short, Ohio HB 125 isn’t attacking the definition of “viability.” It’s an outright attempt to take on Roe v. Wade and make abortion illegal in practice for the vast majority of women.
Perhaps this is the reason why the Ohio House Health Committee determined that the bill was, according to committee chair Lynn Watchmann, “not quite ready.” WTOV 9 out of Steubenville reports:
[T]he bill’s future is uncertain. Opponents said the so-called “heartbeat bill” would be unconstitutional. Republican House Speaker Bill Batchelder hasn’t said whether he supports the legislation, saying he wants to consider what the legal defense would be first.
Essentially, the bill’s sponsor and the Ohio House Speaker not only know that the law would be unconstitutional, they’re banking on it as a gateway to get the Supreme Court to take up the issue of abortion again. They’ve paused for a moment, not because it’s a bad bill, but because they want to get their strategy in line and prepare themselves for a legal defense of it in a Supreme Court trial. I doubt that this will be the last we’ve heard of Ohio HB 125 or others like it.