Will the Ohio Heartbeat Law Withstand Court Or Be Overturned?

Contemporary Issues

Will the Ohio Heartbeat law withstand court or be overturned?

COLUMBUS, Ohio - Backers of an Ohio bill to effectively ban abortions after the first detectable fetal heartbeat are declaring Round 2 in what is probably an uphill fight.

Several state lawmakers said Thursday they are reintroducing the so-called "heartbeat bill," which could prohibit abortions from being performed as early as six weeks into pregnancy. It failed to clear the Legislature last year after an intense lobbying effort.

This time around? "We're not willing to take no for an answer," said Republican Rep. Christina Hagan, of Alliance.

But Hagan acknowledged the proposal could get pushback in the Republican-dominated Senate, where the bill met its demise last year. The then-GOP leader blocked it from a vote before the session ended. The Republican-controlled House had passed the bill in June 2011.

Asked by reporters what she has heard from senators, she said, "There's a little bit of hesitation."

Supporters hope the stringent nature of the heartbeat bill will provoke a legal challenge with the potential to overturn the U.S. Supreme Court's 1973 Roe v. Wade ruling, which legalized abortion up until viability, usually at 22 to 24 weeks.

Similar measures in two other states are tied up in courts.

Last month, a federal judge temporarily blocked North Dakota's law from taking effect, calling it "clearly invalid and unconstitutional." And in Arkansas, a federal judge has temporarily blocked the state's law that bans most abortions 12 weeks into a woman's pregnancy from taking effect this month while a legal challenge is pending. The law is tied to the date when a fetal heartbeat can typically be detected by an abdominal ultrasound.

Ohio supporters of the bill say different federal court judges have different opinions. "None of those judges are the law of the land," said Republican Rep. Matt Huffman of Lima.

A spokesman for the Senate Majority Caucus declined to comment on the heartbeat bill, noting the measure could change if or when it gets to the chamber.

"Our caucus has done a lot to advance the cause of life, and our members are satisfied with the work that we've done so far," spokesman John McClelland added.

Ohio lawmakers added abortion restrictions into the state budget that passed in late June. Among them was a requirement for doctors to check for a detectable fetal heartbeat and share the information with the pregnant woman before she consents to an abortion.

The heartbeat bill had fiercely divided Ohio's anti-abortion community, with some fearing a court challenge could undo other abortion restrictions already in place. It also energized anti-abortion rights groups who rallied against it.

Hagan said 40 of the 99 Ohio House members have signed on as co-sponsors. She said the bill now includes a joint legislative panel to promote adoption options in the state. Another provision also would require abortion clinics to be inspected to ensure fetal heartbeat restrictions were upheld.

Last session's push had been one of noisiest lobbying efforts in recent state memory.

Ultrasounds were performed at the hearing on two women who were early in their pregnancies, so legislators could see and hear the fetal hearts. Proponents delivered bouquets of red heart-shaped balloons and teddy bears to lawmakers and eventually turned to angry full-page ads in the Columbus newspaper.

Opponents also grew vocal. They rallied at the Statehouse during key votes, arguing the legislation could endanger the lives of women, forcing them to seek the procedure in unhealthy circumstances.

History of the Abortion Debate
Timeline of Significant Supreme Court Decisions

Up to mid-1800s: Abortion is legal and common.
By 1900: Abortion is illegal virtually across the country.
1967 to 1973: Seventeen states rewrite their abortion laws. Four states -- Alaska, Hawaii, New York and Washington -- repeal their bans entirely.
1973: In a 7-2 decision, the Supreme Court in Roe v. Wade strikes down a Texas law banning abortion. The court divides pregnancy into three trimesters and declares that during the first 13 weeks, the decision should be left up to "the attending physician, in consultation with his patient."
1976: In Planned Parenthood of Central Missouri v. Danforth, the Supreme Court strikes down requirements for parents and spouses to consent to abortions.
1980: In Harris v. McRae, the Supreme Court upholds the Hyde amendment, which restricts Medicaid funding of abortions to those procedures needed to protect the life of the pregnant woman and to those required in other special circumstances.
1983: In Akron v. Akron Center for Reproductive Health, the Supreme Court invalidates a city ordinance requiring, among other things, that all abortions after the first trimester be performed an a hospital and that parental consent be required for abortions on girls under 15.
1986: In Thornburgh v. American College of Obstetricians & Gynecologists, the Supreme Court strikes down a Pennsylvania statue requiring a woman seeking an abortion to receive from her doctor a state-sponsored lecture about potential risks and detailing alternatives.
1989: In Webster v. Reproductive Health Services, the Supreme Court upholds a Missouri law banning the use of public employees or facilities for abortion and requiring physicians to perform tests to determine viability on fetuses of more than 20 weeks' gestation.
1992: In Planned Parenthood of Southeastern Pennsylvania. v. Casey, the Supreme Court upholds the core of its Roe v. Wade ruling and ban states from outlawing most abortions. But it abandons the trimester plan and instead adopts a new test -- abortion regulations that present an "undue burden" on women's constitutional right will be prohibited.

Quotes from each side:

From Dr. James C. Dobson: "Our goal must always be to bring about a decisive end to this evil practice, with public policy that matches public sentiment."

From Gloria Feldt: "There are many different assaults, and it's incredibly important for people to connect the dots and recognize that they are all part of an overarching plan to eliminate reproductive rights."

Roe v. Wade (1973)

Summary
This month, we spotlight the landmark case Roe v. Wade (1973). In this case, the Court held that the right to privacy included the abortion decision, and that states could not ban the procedure in the first trimester. One of the Court’s most controversial decisions, the ruling overturned laws banning abortion in at least thirty-one states.
According to common law tradition carried over in the United States from England, abortion before “quickening,” (or when the fetus’s movements could be felt) was not a crime. In 1821, Connecticut adopted a portion of a British law and passed the first US law banning abortion after quickening. At the time of the adoption of the Fourteenth Amendment in 1868, twenty states (out of thirty-seven) restricted abortion. By the 1950s, almost every state banned all abortions except when necessary to save the woman’s life.
A shift began in the 1960s. Beginning with Colorado in 1967, thirteen states opened access to abortion. Several states restricted the procedure, while thirty-one states allowed it only to save the life of the mother. A Texas woman, using the name Jane Roe, challenged her state law and her case eventually went to the Supreme Court.
The Constitution does not list a right to privacy. The Court has held, however, that Bill of Rights protections of free speech, assembly, and religious exercise (First Amendment), along with freedom from forced quartering of troops (Third), unreasonable searches and seizures (Fourth), and forced self-incrimination (Fifth) create “zones of privacy.” These “zones,” the Court held, are places into which the government cannot unreasonably intrude. Roe claimed that the law robbed her of her right to privacy as protected by the combination of Bill of Rights amendments, and of her liberty as protected by the Due Process Clause of the Fourteenth Amendment.
The Court agreed with Roe and held that “the right to privacy includes the abortion decision.” The Court emphasized that abortion rights were not absolute. “The pregnant woman cannot be isolated in her privacy…[I]t is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved.” States could not ban abortion during the first trimester, but as pregnancy progressed, the Court held, the state’s interest in protecting life could begin to outweigh the woman’s liberty. Therefore states could restrict the procedure later in pregnancy.
The decision in Roe v. Wade continues to be one of the most controversial the Court has ever issued. Demonstrations are frequently held on the anniversary of the decision—some in protest and some in support. In subsequent cases, the Court has upheld laws requiring waiting periods and other similar restrictions on abortion, even within the first trimester.

Circumstances of the Case

In Texas, State law prohibited the termination of a pregnancy by artificial means (surgery) except when the life of the mother was in danger. The statute was construed as a “nearly complete ban on abortion.” A Texas woman, claiming privacy as a “fundamental right,” challenged the Texas statute. In 1971 the case was argued before the Supreme Court. In 1972 it was argued again. Roe and a companion case from Georgia, Doe v. Bolton, were the first cases to test, in the Court, the newly recognized “right of privacy” against the “compelling interest” of the States to regulate abortions.

Constitutional Issues

This case involved the right of privacy as implied by Amendments 1, 3, 4, 5, 9, and 14 versus the police power of the States. Did States have a compelling and overriding interest in regulating the health, safety, and morals of the community? Was there an area of personal, marital, familial, and sexual privacy protected by the Bill of Rights? Was the Texas law an unreasonable invasion of privacy, or was it a reasonable exercise of the police power? Were women permitted to terminate pregnancies “at will,” or were fetuses “persons” with rights to be protected by the State?

Arguments

For Roe: Under the Bill of Rights, a woman has the right to terminate her pregnancy. It is improper for a State to deny individuals the personal, marital, familial, and sexual right to privacy. Moreover, in no case in its history has the Court declared that a fetus—a developing infant in the womb—is a person. Therefore, the fetus cannot be said to have any legal “right to life.” Because it is unduly intrusive, the Texas law is unconstitutional and should be overturned.
For Wade: The State has a duty to protect prenatal life. Life is present at the moment of conception. The unborn are people, and as such are entitled to protection under the Constitution. The Texas law is a valid exercise of police powers reserved to the States in order to protect the health and safety of citizens, including the unborn. The law is constitutional and should be upheld.

Decision and Rationale

By a vote of 7-2, with Justices White and Rehnquist in dissent, the Court agreed with Roe and upheld her right to terminate a pregnancy in the first trimester (90 days). The Court observed that Section 1 of the 14th Amendment contained three references to “person.” In his majority opinion, Justice Blackmun noted that, for nearly all such references in the Constitution, “use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.”
Blackmun's opinion carefully steered between the right to privacy and the question of compelling State interest. On the first point, he wrote, the majority of the justices “do not agree” with Texas that the State “may override the rights of the pregnant woman that are at stake.” On the other hand, the State does have an “important and legitimate interest in protecting the potentiality of human life” and in protecting the mother's health. Blackmun's decision revolved around the development of the fetus during pregnancy. He held that during the first trimester, or three months, of a pregnancy, the woman in consultation with her physician had an unrestricted right to an abortion. During the second trimester, States could regulate abortion to protect a woman's health. Finally, during the third trimester, the State's interest in protecting the potential life of the fetus was sufficient to justify severe restrictions.
Approaching the matter of when life begins, Blackmun was clearly hesitant to commit the Court to any position.
Controversial when announced, the Roe decision remains at the center of the legal controversy over the right to privacy versus the rights of the unborn. In Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992, the Court reaffirmed Roe's central holding but abandoned its trimester structure. The Court permitted States to require informed consent, a 24-hour waiting period, and/or parental notification, but held that States may not place an “undue burden”on a woman's right to an abortion.
Questions

1. On what Bill of Rights protections does the Supreme Court base the right to privacy?
2. How did the Court rule?
3. In his dissent, Justice White wrote, “The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. … I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States.” Do you agree? Why or why not?

The following is a list of arguments in the Roe v. Wade court case. Read through each argument and decide whether it supports Roe’s side (R), against the Texas law restricting abortion; Wade’s side (W), in favor of the Texas law restricting abortion; both sides (BOTH); or neither side (N).

1. The Fourteenth Amendment says "No State shall…deny to any person within its jurisdiction the equal protection of the laws." Having different abortion laws in various states keeps poor women in states with restrictive laws from having access to abortions, while wealthier women can travel elsewhere to have a legal and safe abortion.

1. The Fourteenth Amendment says "No State shall…deprive any person of life, liberty, or property, without due process of law…." This clause has been interpreted in some cases to guarantee substantive due process. This means that the government cannot infringe on liberty without proving a compelling interest and any law that infringes on liberty has to be very narrowly crafted. Any law that infringes on a protected liberty interest, in this interpretation of the Fourteenth Amendment, is presumed to be unconstitutional and the State has to jump a high hurdle to prove otherwise.

1. The Texas abortion law declaring that a woman cannot have an abortion unless her life is in danger is too vague. Doctors may not know precisely when they are breaking the law when performing an abortion.

1. The First, Fourth, and Fifth Amendments apply to the States. Though these Amendments do not mention the right of privacy, privacy is fundamental to the exercise of the rights that are explicitly mentioned. As such, privacy is protected by the penumbras of the First, Fourth, and Fifth Amendments:
2. The First Amendment says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
3. The Fourth Amendment says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…."
4. The Fifth Amendment says "No person shall…be compelled in any criminal case to be a witness against himself…."

1. The Ninth Amendment says "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." The Framers did not want the Bill of Rights to be an all-inclusive list of the rights that people in the United States have. The Ninth Amendment says that people retain other rights that are not explicitly listed in the Constitution. Among these rights may be the right to privacy, which would include freedom of choice in the basic decisions of one’s life.

1. It has long been an acknowledged role of the state to safeguard health and regulate medical practices.

1. The U.S. Constitution does not explicitly mention any right of privacy.

1. The use of the word “person” in the U.S. Constitution as it was drafted does not include a fetus. Thus, the Fourteenth Amendment cannot be construed to protect the unborn.

1. As a pregnancy progresses, the interest of the state in protecting the health of the mother and the life of the fetus becomes more “compelling.”

Is Privacy Protected in the Constitution?