Is Ohio’s New Abortion Ban Unconstitutional?

At first glance, news that Ohio Gov. John Kasich vetoed an abortion measure outlawing abortion at as early as six weeks might have seemed like cause for celebration for supporters of reproductive rights.

But on the very same day he rejected the so-called “Heartbeat Bill,” the GOP governor gave the green light to another measure seriously restricting access to abortion. And pro-choice groups are warning that the 20-week ban Kasich signed into law on Tuesday might pose an even greater threat to the future of reproductive rights.

That’s because, experts say, the 20-week abortion ban is actually part of a larger effort on the part of pro-life groups to reduce abortion access on the state level — and it seems to be working. Eighteen states have passed 20-week bans. While two of those (in Idaho and Arizona) were overturned by lower courts, fifteen states still have the ban on the books.

“It’s part of what has proven to be a particularly successful strategy of not challenging Roe v. Wade head on,” B. Jessie Hill, a Case Western Reserve University law professor and an expert on reproductive rights, told Refinery29. “Instead it’s a way of chipping away at it.”

Groups that support reproductive rights, including Planned Parenthood, have denounced the laws as unconstitutional. But are they?

The answer to that question is one that may need to be decided by the Supreme Court.

Experts say the 20-week bans have a good shot at withstanding the inevitable lower court challenges they will face. Those courts could, for example, decide the laws don’t put an “undue burden” on women seeking abortions or that the Supreme Court’s definition of a “viable fetus” is outdated. The parameters previously established by the Supreme Court protect a woman’s right to an abortion under any circumstances until the fetus is viable, which is generally considered to be after 24 weeks.

Browne C. Lewis, a law professor and the director of the Center for Health, Law, and Policy at Cleveland State University expects pro-life advocates to argue that modern medical advances continue to move up the point of fetal viability, creating the possibility that a 20-week old fetus could be viable someday. Since viability can only be determined on a case-by-case basis, Lewis expects the argument to conclude that decisions regarding abortions should be left up to medical professionals and individual states — not the federal government.

Lewis also worries that a potential lower court decision to uphold the 20-week ban and accept that a fetus at that point can feel pain could opens the door to more draconian restrictions.

“If 20 weeks stands then it empowers the opposition to say well a fetus is a person, and that a fetus has personhood so if you are doing an abortion then you are murdering,” Lewis said. “Soon, that turns into a ban.”

All that means the Ohio law and others like it could be used to redefine the point at which the government can interfere with a women’s right to an abortion, and potentially overturn the landmark 1973 Supreme Court decision Roe v. Wade.

Lewis thinks the threat is imminent.

“Roe v. Wade is not going to survive this four-year administration,” she said. “Not because of the legal climate but because of the political climate. There have been attacks on women’s lives for a long time and they’ve come to the forefront in the last election.”

President-elect Donald Trump is expected to nominate at least one, and possibly up to three people to the U.S. Supreme Court, which Lewis believes could swing the majority to the pro-life side, should laws like this one be challenged up to the highest court. She’s also concerned the law will have a chilling effect on doctors' willingness to perform abortions.

Ohio’s new law, for example, bans virtually all abortions past the 20-week mark, and imposes criminal penalties on doctors who perform them. It makes no exceptions for cases of rape or incest, and it requires a mother’s life be in imminent danger before she can have an abortion later in a pregnancy.

The law, dubbed the “Pain-Capable Unborn Child Protection Act,” is predicated on the disputed belief that fetuses can feel pain after 20 weeks of gestation. (A 2005 study published in the Journal of the American Medical Association found that fetuses most likely cannot feel pain before the third trimester, which starts at 28 weeks.)

In Hill’s mind, names like that are part of a broader problem: Political dialogue around the issue doesn’t lend itself to the nuances of individual people’s lives and pregnancies.

“On the surface it sounds good but it’s really dangerous,” she said.

According to the Ohio Department of Health, fewer than 1% of the abortions that occurred in the state in 2015 happened at 21 weeks or beyond, and just 1.6% took place between 19 and 20 weeks of gestation. Many women who opt for an abortion past 20-weeks do so because certain fetal anomalies cannot be detected until that time, Hill said. And the low case numbers make it harder to build public and political support for challenging the law.

“If this was a 15-week ban every (pro-choice) group in the country would be challenging it because it would affect a whole lot more women,” Hill said. “Is 19 weeks going to be next? 18? We’ll say it’s just one more week, it’s just a few women. It’s this cumulative effect that’s really concerning.”

In the meantime, don’t expect efforts to restrict abortion rights at the state-level to slow down anytime soon. According to the Guttmacher Institute, state legislatures have passed nearly 300 anti-abortion laws since 2010. Lewis points to that data as proof that you can’t rely on states to protect women.

“You can’t trust legislatures to protect anybody’s rights that aren’t white and male, because that’s not how legislatures are made up,” she said. “I’m always troubled by the fact that (as a woman) I am not considered responsible enough to make decisions about my reproductive health, and that I just want to have an abortion for sport, that I’m not thoughtful and it isn’t my last resort.”

But the fight is on.

Pro-choice groups in Ohio and beyond have declared the 20-week ban unconstitutional, and are expected to challenge it in court.

“If we let the 20 weeks stand, it entitles women to take matters into their own hands in a negative way,” Lewis said. “I think we’d go back to the back alley abortions.”