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'We'll See You at the Supreme Court!' How Ohio's Heartbeat Bill Threatens Roe

04-24-2019
Baby in the womb (Photo: Adobe Stock)

ANALYSIS

This month may have seen the initial judicial step in overturning the landmark abortion case, Roe v. Wade.

Ohio Governor Mike DeWine has signed into state law one of the most restrictive pro-life bills in the United States: SB 23, otherwise known as the "heartbeat bill."

Inside the Heartbeat Bill 

SB 23 prohibits abortions if a heartbeat is detected, which according to the American Pregnancy Association (APA) starts between 5 ½ to 6 ½ weeks. APA also reports that most women discover they're pregnant at 5-7 weeks development. That said, many women don't know they're pregnant until after a baby's heartbeat begins and thus many women who would have otherwise chosen abortion will be prohibited from doing so.

The bill does allow for an exception if the mother's life is at risk, but not for circumstances of rape or incest.

The bill also requires that women who seek but cannot attain an abortion are counseled on adoption options.

Chairman of the Ohio House Health Committee, Rep. Derek Merrin, told CBN News that he acknowledged the threat that this bill has to the Roe decision. "This bill was constructed to save lives, and with the standard we've set, we certainly expect the Roe decision to be challenged."

Jena Powell, representative for Ohio's 80th district, praised the passing of the law and told CBN News, "This is a big day for the people of Ohio and ultimately the United States. Democrats are scared. They can see the threat this bill has on Roe v. Wade and they are scared."

How Could Ohio's Heartbeat Bill Lead to the Overturn of Roe v. Wade?

A leading component to the Roe decision was the balancing act between a woman's right to privacy and the life potentiality of the fetus. Thus, any chance to overturn Roe must involve similar components. Ohio's heartbeat bill does just that, and such language could easily initiate a revisit to the Roe decision.

Speaking with CBN News, Professor of political science at Biola University, Dr. Scott Waller, weighed in.

"The heartbeat bill seems, on its face, to challenge the idea that the developing fetus is only a potential life until it becomes viable at some point during the third trimester. If the courts determine that the presence of a heartbeat denotes the presence of an actual life (i.e., a real life separate and distinct from the mother) then this life would enjoy the protections of the 14th Amendment as even the Court admitted in Roe," Waller said.

In order for the Supreme Court to consider an overturn to Roe, the heartbeat bill must first be challenged. Such a challenge has already been promised by the ACLU, enlisting the pro-choice group Preterm-Cleveland as their Plaintiff. Planned Parenthood is also joining the ranks of legal opposition.

"We'll see you at the Supreme Court!" said Iris Harvey, president of Planned Parenthood of Ohio.

The lawsuit is both expected and welcomed by Ohio state legislators.

"Will there be a lawsuit? Yeah, we are counting on it…We're excited about it," said Ohio state Rep. Ron Hood.

Clearly, a legal battle is looming – one that both sides are ready and willing to take to the highest court in the land.

Legal Director for the ACLU of Ohio, Freda Levenson, told CBN News she expects the law to be struck down. "The so-called heartbeat bill is a clear violation of the precedent set forth in Roe. The jurists on the courts, regardless of their philosophy, have a duty to the Constitution which has already upheld Roe."

While some pro-life policy-pushers have suggested the heartbeat bill was specifically drafted to overturn Roe, other pro-life activists see the potential overturn as a convenient result, but not necessarily the target idea.

President of Citizens for Community Values Aaron Baer told us, "While the heartbeat bill was not specifically drafted to overturn Roe v. Wade, it was drafted to be Constitutional. An overturn to Roe v. Wade would simply be a result of the constitutional integrity of the heartbeat bill."

What Would the Sequence of Court Decisions Look Like?

The ACLU of Ohio confirmed to CBN News that they will be filing in federal court. This would start in the Ohio District Court, followed by the 6th Circuit Court of Appeals, and then the United States Supreme Court. This is supposing all courts agree to review the case.

6th Circuit Court of Appeals

With President Trump following through on his campaign promise to appoint conservative justices to the Supreme Court, the reality of a landmark overturn has become more viable.

It is important to note that in addition to Trump's two SCOTUS appointees, as of September 1, 2019, he has also appointed (with Senate confirmation) over 140 federal judges to the lower federal courts, over 40 of whom are on circuit courts. The Supreme Court is presented with approximately 7,000 cases a year and selects approximately 250 to review. Thus, circuit courts often set the precedent for their jurisdiction with no hierarchal influence.

The 6th Circuit Court of Appeals holds a heavy conservative leaning, with 11 of the 16 active judges reputably more conservative. Six of them are Trump appointees.

US Supreme Court Makeup

The appointment of Justice Neil Gorsuch, while a victory for conservatives, did not change the jurisprudential demographics of the Court. Gorsuch's appointment prolonged the conservative influence of the late Justice Antonin Scalia but did not increase or decrease the Court's conservative influence.

However, the appointment of Justice Brett Kavanaugh to the high Court may change the jurisprudential demographics, since his predecessor, Justice Anthony Kennedy, historically ruled against the pro-life agenda. Kennedy was a key player in the 1992 Planned Parenthood v. Casey which effectively upheld Roe with little change.

But the current demographics of the Supreme Court are only so relative to the Ohio heartbeat bill, since the appellate process can take between 4-6 years. Two of the Court's liberal justices are also the two oldest: Justices Breyer at 80 and Ginsburg at 86. By the time the heartbeat bill makes its way to the Supreme Court, Justice Ginsburg may have retired, if not also Breyer.

If Trump's history of SCOTUS appointees remains consistent, and assuming his reelection, the conservative majority on the Court could shift from 5-4 to 6-3 or even 7-2 if both of the Court's eldest justices retire by the time this case makes its way to the high court. If Trump is not reelected, the Court's shift may fall towards a liberal influence.

 

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