Fate Of Ohio "Heartbeat Bill" In Kasich's Hands

The fate of Ohio’s “Heartbeat Bill,” which aims to ban abortions if a fetal heartbeat can be detected now rests in the hands of John Kasich. If the bill becomes law, it would effectively ban abortions after around six weeks, which is often before women know they’re pregnant. It's up to the Republican Ohio governor, who ran for the party's presidential nomination this year, who can either sign the bill into law or veto it.

Kasich, the one-time symbol of rationality in 2016’s highly irrational Republican presidential primary, turns out to be your garden variety straight white GOP male when it comes to, as Samantha Bee puts it, “your uterus.” As governor, Kasich has presided over several legal restrictions on abortion, including prohibitions on late-term abortions even when the life of the mother is in danger.

But Kasich’s position on the “Heartbeat Bill” is difficult to pin down. He opposed a similar bill (which didn’t make it to his desk) in 2015, though his reasoning was that the ensuing legal battle could roll back pro-life efforts. The impetus for the new legislation, according to Ohio Senate President Keith Faber, is the new judicial landscape that will be crafted by a President Donald Trump.

“A new President, new Supreme Court justice appointees change the dynamic, and that there was a consensus in our caucus to move forward,” Faber said. “I think [the bill] has a better chance than it did before of surviving a legal challenge," he added.

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While the bill’s chances may be better than they were before Trump’s victory, it’s far from certain that it would survive a Supreme Court challenge. The most recent significant Supreme Court case on abortion, Whole Women’s Health v. Hellerstedt, held that Texas’ controversial H.B. 2 Law, which mandated that abortion providers’ facilities conform to standards for ambulatory surgical centers and that abortion doctors have admitting privileges in nearby hospitals, violated women’s constitutional rights by placing a “substantial burden” on their access to abortions with no clear explanation of why it was in the state’s interest.

The five justices that made up the majority opinion are all still alive and on the court, and even if Trump nominated “another Scalia,” the pro-life causes would need to win over one of the five justices from Hellerstedt, most likely Anthony Kennedy, the court’s perennial swing justice.

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What’s most troubling about Ohio’s bill is less whether it will succeed or fail in and of itself, but rather what it represents for the ongoing battle over abortion. If Trump’s SCOTUS nominee is truly a Scalia 2.0, and if Kennedy finds himself persuadable by the same legal arguments that won him over in previous abortion cases, like Webster v. Reproductive Health Services, the legacy of Roe v. Wade could be in greater danger than anyone realized.