Yesterday, the state legislature of Ohio passed a fetal "heartbeat bill," a highly controversial and likely unconstitutional piece of legislation that bans women in the state from having an abortion once a fetal heartbeat can be detected by ultrasound. While the Ohio bill is receiving a lot of attention, it is unfortunately just one in a series of controversial fetal heartbeat bills that have been proposed or passed across the country over the past few years.
Fetal heartbeat bills are highly restrictive for women for a variety of reasons. First, they directly contradict the abortion rights guaranteed to women in Roe v. Wade. The landmark Supreme Court case allows all American women to legally have abortions until a fetus becomes viable, which is typically between 24 and 28 weeks into pregnancy. Thus, fetal heartbeat bills blatantly contradict Roe v. Wade, and are proposed and passed despite the obvious inconsistency with federal law.
In addition to their highly questionable legal status, fetal heartbeat bills also seek to ban abortions before many women even realize they are pregnant, which often occurs right around the six-week mark, or even later. This incredibly limits a woman's agency in regards to her pregnancy. Furthermore, in early pregnancy, fetal heartbeats can only be detected by transvaginal ultrasounds, meaning that such bills suggest that women must undergo the invasive procedure in order to determine whether or not they can have an abortion.
Yet, in spite of their highly disputed status, fetal heartbeat bills have been a pervasive part of the pro-life movement for the past few years, and the Ohio bill is merely the most recent iteration of this trend. In addition to Ohio, eight other states — Alabama, Arkansas, Kansas, Kentucky, Mississippi, North Dakota, Texas, and Wyoming — have all had fetal heartbeat bills introduced or passed in their state legislatures over the past few years.
In two of these states, North Dakota and Arkansas, fetal heartbeat bills were signed into law and were eventually overturned by the states' court systems, which ruled them unconstitutional due to their direct contradiction of Roe v. Wade. In the other states, fetal heartbeat bills were proposed and debated in legislative committees, but never passed the committee stage.
Though such bills are likely to be struck down in court, state legislators nonetheless continue to try to pass them. While reasons may vary, in my opinion, it is likely that heartbeat bills are used as political maneuvers by pro-life politicians; they offer them a way of very publicly expressing their disdain for federal abortion protections, which unfortunately helps them maintain their pro-life, conservative base. Additionally, if passed, heartbeat bills temporarily become law until they are deemed unconstitutional by courts, which means that, at least in the interim, the law is possibly being enforced. Finally, certain conservative politicians certainly may hope that a fetal heartbeat law will be taken all the way to the U.S. Supreme Court, and prompt a possible overturn of Roe v. Wade.
The recent passage of Ohio's fetal heartbeat bill is likely geared toward this hope for a Supreme Court debate on the tenets of Roe v. Wade. Indeed, the president of the Ohio Senate acknowledged that the bill was inspired by the election of Donald Trump and the fact that he will have the opportunity to nominate at least one conservative Supreme Court justice. A new conservative justice (or justices) will change the makeup of the Court and present a possible opportunity for the overturn of Roe v. Wade should the Ohio law make it all the way to the highest court.
All of the previously-mentioned fetal heartbeat bills were proposed or passed during the Obama administration; with the election of Trump and the promise of more conservative Supreme Court justices, one can likely expect the passage of several more bills seeking to prompt a debate of Roe v. Wade at the Court. Thus, in order to ensure that women's rights continue to be protected, it is more imperative than ever that pro-choice advocates vigilantly monitor state legislatures for fetal heartbeat bill legislation, and actively work to counter their passage.