The American Civil Liberties Union of Ohio filed a suit Wednesday challenging a law signed by Republican Gov. Mike DeWine that would ban abortions after a “fetal heartbeat” is detected and criminalize doctors who perform them anyway. This would, in essence, end abortions after six weeks of gestation, a direct conflict with federal court decisions using “viability” outside the womb as the cut-off point for when states can restrict abortions. Medical experts put viability at around 24 weeks, but 21 states have passed laws banning abortions after 20 weeks. Only two of those have been blocked in the courts.
Fetal heartbeat laws are particularly foul because a “heartbeat” can typically be detected in the embryonic stage of development at as early as six weeks’ gestation. That is before many women even know they are pregnant. Moreover, the term “heartbeat” isn’t accurate. According to Dr. Rebecca Cohen, an assistant professor of obstetrics and gynecology at the University of Colorado, “It’s not a fully formed heart like you would understand from looking at an adult or even a young child. It’s a very early structure. We can see it on the ultrasound, but it’s not a heart, a fully developed organ, by any means.”
In a written statement, Freda Levenson, legal director of the ACLU of Ohio, said, “This assault on reproductive rights has been anticipated, and we’ve been preparing and perfecting our case. ‘Total ban’ is not inflammatory rhetoric — this is a ban on almost all abortions, and if the court does not block it, it will imperil the freedoms and health of Ohio women. The law of the land has been crystal clear for nearly 50 years: women have a categorical right to a pre-viability abortion.”
When the Ohio law was signed in April, Ohio Democratic Party Chairman David Pepper said, "A woman should have the ability to make her own personal decision about whether or not to become a parent, and no politician should interfere in that decision. … This bill is a disgrace, and it will endanger women’s lives in Ohio."
Forced-birthers in seven states have now passed six-week abortion bans, but three have been blocked in the courts, and none has yet been implemented.
After decades of attacking women’s reproductive rights by passing laws that make getting an abortion more difficult, more time-consuming, and more expensive, the foes of safe and legal abortion are now going for a complete reversal of Roe v. Wade. If the Supreme Court were to take on such a case, the justices reviewing it would be a far cry from those who have ruled on previous abortion cases. While the 4-3 split on abortion of seven of the justices is clear, all eyes are focused on Chief Justice John Roberts and Justice Brett Kavanaugh. The fear is that both of them will combine with the forced-birther faction to send federal abortion law back to the Dark Ages with a 5-4 ruling.
Some observers fear that doing that might also set the stage for reversing the court’s 1965 ruling in Griswold v. Connecticut. The ruling in that case said that “marital privacy” meant states could not ban the use of birth control by married couples. This was followed by the 1972 ruling in Eisenstadt v. Baird, which extended this right to unmarried couples on the grounds of equal protection. The justices who ruled for Roe used the privacy argument to underpin their decision.