By Hailey Cleek
The Ohio House recently voted to pass a controversial bill in effort to restrict abortion access for women. H.B. 258 would prohibit an abortion for pregnant women in Ohio if the presiding physician detects a fetal heartbeat. Gov. Kasich vetoed a similar bill in 2016, describing such efforts as “clearly contrary to the Supreme Court of the United States’ current rulings on abortion.”
Under H.B. 258, a physician who knowingly and purposefully performs or induces an abortion after detecting the fetal heartbeat could face a fifth-degree felony, punishable by up to a year in prison. The bill would not apply to a physician who performs a medical procedure that is intended to “prevent the death” or a “serious risk of the substantial and irreversible impairment of a major bodily function” of the pregnant individual. Yet the bill does not provide exceptions for rape, incest, or domestic violence. Representative Christina Hagan, who sponsored the bill, recently commented on the bill, stating, “We believe Ohio is best positioned to send this through the Circuit Courts and to the federal Supreme Court.” The bill was crafted in direct efforts to challenge Roe v. Wade.
The bill would effectively ban abortions after the first six weeks of a woman’s pregnancy. As described by the American Pregnancy Association, fetal heartbeats can be detected as early as six weeks’ gestation; however, women may not know that they are pregnant at this time for a variety of reasons.
First, many women do not menstruate regularly. The absence of menstrual periods is a common symptom for pregnancy, yet women with certain medical disorders, like polycystic ovary syndrome (“PCOS”), may not know that they are pregnant. Some women with PCOS may have fewer than eight periods per year; others stop having menstrual periods. Women nearing menopause have disrupted menstruation.
Secondly, while “morning sickness” is a common symptom for pregnant women, women report vastly different experiences. Women may not even know that they are pregnant until beyond six weeks.
Additionally, the bill does not address how several complications may not threaten a woman’s health until later in pregnancy. For example, an ectopic pregnancy occurs when a fertilized ovum implants outside the normal uterine cavity. Patients likely do not know that they face an ectopic pregnancy until they present with pain and vaginal bleeding between 6 and 10 weeks’ gestation. Limiting abortion access potentially increases potential negative health outcomes.
Thus far, courts have rejected numerous state laws that sought to significantly reduce the time a woman can seek an abortion based on fetal heartbeats. Iowa passed a heartbeat law in May of this year, but that bill is pending additional litigation. Iowa’s heartbeat bill differs from Ohio’s in that it provided exceptions for cases involving rape and incest. Yet the exception is only available if the woman reports the incident to police or a physician within 45 days for a rape case or 140 days for incest. Polk County District Court Judge Michael Huppert placed a temporary injunction on the state’s heartbeat law in June as the bill’s constitutionality is resolved.
Previously, fetal heartbeat bills were approved in both North Dakota and Arkansas in 2013. Both were struck down by the by the 8th U.S. Circuit Court of Appeals. At that time, the U.S. Supreme Court declined to review the cases.
The fetal heartbeat bills represent broader questions with respect to access for reproductive rights: At what point may states attempt to limit a woman’s right to an abortion? Should states attempt to regulate conversations and care between a health care provider and patient? How can health care providers be held accountable for following the political will of the state legislature? Notably, the American College of Obstetricians and Gynecologists (“ACOG”) has repeatedly denounced efforts to criminalize or unnecessarily limit women’s access to abortion. When addressing a separate fetal heartbeat bill, ACOG President Dr. Thomas Gellhaus explained how fetal heartbeat bills “affect ob-gyns’ ability to make ethical and professional decisions in the best interest of their patients.” Proposed legislation like the Ohio fetal heartbeat bill do not reflect the desires of physicians and providers who serve their patients.
Prior Supreme Court precedent is clear: women have a constitutional right to access an abortion before fetal viability. Roe v. Wade established that women have the right to an abortion until the end of their second trimester of pregnancy. In Planned Parenthood v. Casey, the Supreme Court framed the question of access from trimesters to one of viability; the Court ruled that states can only outlaw abortions of viable fetuses. Legislation like Ohio’s fetal heartbeat bill attempt to limit women’s medical decision-making abilities. It injects the state legislature into conversation between a woman and her physician. Moreover, these laws potentially restrict physicians’ and providers’ ethical duties. The Ohio fetal heartbeat bill would force health care providers to deny a form of health care to a patient until she faces a life-threatening condition. Ohio’s fetal heartbeat bill is neither compassionate nor in-step with the best care practices.
Hailey Cleek is a JD/MA Bioethics student at Wake Forest University School of Law. Prior to law school, she worked as a Vann Fellow at Mayo Clinic. She is the 2018 winner for the Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights, co-sponsored by If/When/How, the Center on Reproductive Rights and Justice at UC Berkeley School of Law, and the Center for Reproductive Rights. Her writing on health law, immigration policy, and reproductive rights is forthcoming with Wake Forest Law Review, Berkeley Journal of Gender, Law & Justice, and Virginia Journal of Social Policy & Law.