Ohio Abortion Bill Poses Biggest Challenge to Roe v. Wade Yet

Feb. 9, 2011— -- An anti-abortion bill unveiled by Ohio Republican state legislators today sets the stage for a Supreme Court fight that could jeopardize the decades-old precedent set by the nation's highest court.

The so-called "heartbeat bill" would ban abortions once there is evidence that a fetus has a heartbeat, though it doesn't set a specific time. The heart is one of the first organs to develop, and a baby's heartbeat can be detected as early as 18 days for some women, and by six weeks for most.

The controversial legislation is one of the most stringent anti-abortion plans to be introduced in a state legislature to date.

It clearly challenges the Supreme Court's 1973 Roe v. Wade mandate, under which a woman has the right to abort a fetus until it is "viable," meaning that it's "potentially able to live outside the mother's womb, albeit with artificial aid." It's only at the point of viability -- "usually placed at about seven months" -- that states can restrict abortion.

"There are clearly fetuses that are not yet viable but have heartbeats," said Laurence H. Tribe, a constitutional scholar and professor at Harvard Law School. "What they're doing is trying to push the point at which the woman's rights are subordinated to those of the unborn to a much earlier point in pregnancy. ... It's clearly a frontal challenge to Roe v. Wade."

The bill, one of five abortion-related pieces of legislation introduced within a week in the Ohio legislature, has a strong chance of passage. Republicans control all branches of Ohio's state government -- the House, the Senate and governorship and the state Supreme Court.

Supporters of the bill argue that it sets a new precedent that's grounded in science and that they're ready to fight it all the way up to the U.S. Supreme Court.

"We don't bury people with beating hearts, because the heartbeat is a sign of life," said Janet Folger Porter, president of Faith2Action, who helped craft the bill's language. "We are just applying that same measurement to this end of life and I believe the court is going to recognize -- just like it does with life at the other end of the spectrum -- it's going to recognize this line of life early on."

Similar bills are also being considered by legislators in Texas, Georgia and Oklahoma, and being discussed in Kansas and Arizona, Porter said.

Abortion rights groups say the move by Ohio Republicans is merely a political one that unfairly intervenes in the relationship doctors have with patients.

"They are making decisions for women in banning abortion basically before some women even know they are pregnant," said Nancy Keenan, president of NARAL Pro Choice. "Technology can give us information but it can't make the decision for us."

The bill comes as states are increasingly tightening rules and restrictions on abortions, from requiring more parental consultation to longer waiting periods.

States Move to Tighten Abortion Restrictions

In Indiana, a state senate committee today endorsed a bill that would require doctors to tell women who want to have an abortion that human life begins at conception and that a fetus might feel pain at or before 20 weeks.

The Texas state senate today heard testimony on a bill that says a woman planning to have an abortion has the option to take a sonogram and listen to the baby's heartbeat. The bill, introduced by a Republican state senator, originally required such a move to be mandatory but it was revised after heavy opposition.

Arizona is considering laws that would ban abortions on the basis of the race or sex of the fetus, and prevent state money from going toward abortion, either directly or indirectly.

Experts say state governments have tried to circumvent the federal law for years.

"It's not really new. Ever since the 1980's, there have been repeated sallies by opponents of Roe v. Wade to see what holes they could puncture in the shield for women's reproductive freedoms," Tribe said. "This is simply another wave in an ongoing sea of challenges."

What's different now, though, is that the wave in November that brought in droves of conservatives into state legislatures may increase the number of anti-abortion bills, and essentially pave the way for a Supreme Court challenge sooner than many had predicted.

On the national level, a bevy of new members of Congress are aiming to tighten federal abortion regulations further. At least three different bills dealing with abortion have been introduced in the Republican-dominated House.

Under current law, known as the Hyde Amendment, no funds appropriated to the Department of Health and Human Services can be used to pay for abortion services. But some lawmakers say the Hyde Amendment doesn't go far enough and that the new health care law opens the door for federal funding of abortions through state-based exchanges.