Author of Ohio abortion bill believes court will welcome it 'with open arms'
A bill that would ban abortion after a fetal heartbeat is detected was approved this week by the Ohio Senate, the first step in what the bill's author says is the controversial legislation's path to being welcomed by the U.S. Supreme Court "with open arms."
But many legal experts and women's rights groups say the bill has no chance of surviving in the nation's highest court — even with the shift in the makeup of Supreme Court justices that President Donald Trump's conservative nominations have ushered in.
Ohio's so-called heartbeat bill would ban abortions from the moment a heartbeat is detected in a fetus, which can be as early as six weeks into a pregnancy — before some women even know they are pregnant.
Its author, president and founder of pro-life network Faith 2 Action Janet Porter first introduced the bill in Ohio in 2011 and has in past years described it as being designed to be the "arrow in the heart of Roe v. Wade," the 1973 case that legalized abortion nationwide.
"The bill itself is one that we believe the Supreme Court is ready for," Porter told NBC News on Friday.
A similar measure previously passed the Ohio House and Senate in 2016 but was vetoed by Republican Gov. John Kasich. Porter said Kasich should feel emboldened this time by the new Supreme Court judges on the bench to pass it.
"My hope is that Gov. Kasich returns to his pro-life roots and keeps hearts beating," she said. "He can't claim that this is unconstitutional with a court in place ready to welcome it."
The heartbeat bill is one of two abortion restrictions that Republican Ohio lawmakers have sent to Kasich. The other bill bans dilations and evacuation abortions, one of the most common kinds of the procedure.
Kasich has indicated he will veto the heartbeat bill. Even if he doesn't, many say the odds of the bill reaching the Supreme Court, never mind being backed by it, are slim to none.
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"This is a ban on almost all abortions. There is no question about that. This is blatantly unconstitutional based on more than 40 years of precedent that has been reaffirmed by the Supreme Court over and over again," said Brigitte Amiri, deputy director of the American Civil Liberties Union Reproductive Freedom Project. "The idea that somehow the window dressing of the detectability of a heartbeat changes the equation is nonsense."
The ACLU has vowed to file a lawsuit immediately challenging the bill's constitutionality if it is signed into law.
From there, Ohio will almost certainly have to go to a court of appeals to get the case reviewed again, said Drexel University professor of law David S. Cohen, the co-author of a forthcoming book, "Obstacle Course: The Struggle to Get an Abortion in the United States."
"The lower courts will say that the law's unconstitutional. There's no wiggle room on that," he said.
From there, Cohen said, it could take up to several years to reach the Supreme Court, which would decide whether it wants to hear the case or not.
But in the meantime, there's a possibility that the Supreme Court will hear a number of other challenges to Roe v. Wade first, such as Indiana's ban on abortions for fetal anomalies such as Down Syndrome and Alabama's proposed prohibition on a second-trimester abortion procedure.
"Ohio is obviously doing something radical and unconstitutional, but they're also doing something that they're touting as being the case that's going to overturn Roe v. Wade. But they're just late to the game here," Cohen said.
Porter, the bill's author, said the legislation is "crafted in such a way that it actually doesn't have to bring down" Roe v. Wade but rather changes what marker that the Supreme Court uses for determining life in unborn babies.
Currently, Roe v. Wade focuses on fetal viability — accepting conventional medical standards that a fetus becomes viable sometime around the 24th week of pregnancy, and that a fetus's interests cannot be placed above the desire of the pregnant woman until viability.
"The marker that the court is currently using is viability, which is a lousy one. It could be wrong. It's a great big guess," Porter said. "Heartbeat is a more consistent marker ... We're giving them a better yardstick."
Carol Sanger, a law professor at Columbia University and the author of "About Abortion: Terminating Pregnancy in 21st Century America," said states have tried repeatedly to pass legislation that they see as having a chance at overturning Roe v. Wade.
"It's like a badge of honor," she said. "They're passing legislation that is clearly unconstitutional."
She said it was "unlikely" the Supreme Court would take on the Ohio bill and felt legal options that would result in Roe v. Wade being overturned did not exist in this case.
But Porter expressed confidence that the high court would hear it.
"This is ultimately going to the Supreme Court and we believe it's ready to welcome this heartbeat bill with open arms," Porter said. "I trust that Gov. Kasich won't ruin his political future and never be able to call himself pro-life again by vetoing it a second time."