Early preg­nancy abor­tion bans are sud­denly com­mon

The Charlotte Observer (Sunday) - - News - BY SAB­RINA TAVERNISE New York Times

For years, Ohio Right to Life, the state’s largest and old­est anti-abor­tion group, steered clear of a bill that would ban abor­tion in the very early weeks of preg­nancy – af­ter a fe­tal heart­beat is de­tected.

The rea­son was sim­ple. The bill, which would have been the tough­est abor­tion restric­tion on record, would be dead on ar­rival once it reached an un­friendly Supreme Court.

But af­ter seven years of avoid­ing the ban, Ohio Right to Life’s board gath­ered in an of­fice build­ing out­side Toledo in Novem­ber and voted unan­i­mously to sup­port it. Last week, in Colum­bus, it was signed into law.

The re­ver­sal is ev­i­dence of a fun­da­men­tal shift in the land­scape of abor­tion in Amer­ica. The math on the Supreme Court has changed with Pres­i­dent Don­ald Trump’s choice of Brett Ka­vanaugh last year. And now, in the first leg­isla­tive cy­cle af­ter the midterm elec­tions last fall, states are rush­ing to make changes. Newly con­fi­dent red states are pass­ing some of the strictest pro­hi­bi­tions the coun­try has ever seen. Blue states are en­act­ing ever stronger pro­tec­tions, like ones for later-term abor­tions in New York and Vir­ginia.

“Now is our time,” said Michael Gonidakis, pres­i­dent of Ohio Right to Life in Colum­bus. “This is the best court we’ve had in my life­time, in my par­ents’ life­time.”

In their sights is over­turn­ing Roe v. Wade, the Supreme Court case that es­tab­lished a fed­eral pro­tec­tion for abor­tion in 1973. And many in the move­ment be­lieve that the so­called heart­beat bill – a ban on abor­tion as early as six weeks of preg­nancy, of­ten be­fore a woman even knows she is preg­nant – is the way to do it. The bill flies in the face of decades of Supreme Court de­ci­sions, like a dare to the Amer­i­can legal sys­tem.

“It’s a pretty bold step, I’ll be hon­est,” said Wil­liam Seitz, a state rep­re­sen­ta­tive in Ohio who voted for the bill. “But at least there is some chance that this would pro­vide an op­por­tu­nity to ei­ther fur­ther limit Roe, or per­haps jet­ti­son it en­tirely.”

In the first three months of this year, heart­beat bills, which had been at the fringes of the an­tiabor­tion move­ment for years, have passed in four states – Ken­tucky, Mis­sis­sippi, Ge­or­gia and Ohio. More are mov­ing through the leg­is­la­tures of 11 oth­ers, ac­cord­ing to El­iz­a­beth Nash, a pol­icy ex­pert at the Guttmacher In­sti­tute.

“You weren’t see­ing the six-week bans move be­fore,” Nash said. “Now it’s a front burner is­sue.”

In 2011, Ohio be­came the first state to at­tempt such a ban. Its main pro­po­nent was a de­ter­mined ac­tivist named Janet Porter, who has a long history of tak­ing on con­ser­va­tive Chris­tian causes.

As pres­i­dent of an an­tiabor­tion group called Faith 2 Ac­tion, Porter be­came the gad­fly of the anti-abor­tion move­ment in Ohio, giv­ing news con­fer­ences de­nounc­ing any­one who did not sup­port her bill, even if they were friendly to the cause.

De­spite all this, the bill re­mained alive, oc­ca­sion­ally com­ing up for a vote.

Some­times it would pass the House. Some­times it would pass the Sen­ate. And John Ka­sich, the for­mer Re­pub­li­can gover­nor of Ohio, ve­toed it twice. In the early years, Seitz, a Re­pub­li­can from Cincin­nati, re­mem­bers think­ing that push­ing it did not make much sense, given the com­po­si­tion of the Supreme Court, which as late as 2016 sided with abor­tion clin­ics in a prom­i­nent case in Texas.

“I didn’t de­tect any ap­petite on the part of the court ma­jor­ity to sig­nif­i­cantly limit Roe,” he said. “I just didn’t see it.”

Then came Trump’s elec­tion. Gonidakis re­mem­bers meet­ing with him and other anti-abor­tion ac­tivists in New York and be­ing sur­prised at the lan­guage Trump used. He sounded more like an ac­tivist than a pres­i­den­tial can­di­date, Gonidakis said.

“He said, ‘I’m only go­ing to nom­i­nate pro-life judges,’” he re­called. “That’s lan­guage we use. To hear the can­di­date use it was as­ton­ish­ing. In a good way.”

Right away, Trump nom­i­nated Judge Neil Gor­such – re­plac­ing one con­ser­va­tive, Jus­tice An­tonin Scalia, with another. Then the bomb­shell dropped: Jus­tice An­thony Kennedy, who had voted with the lib­eral ma­jor­ity in 2016 on the Texas case, an­nounced he would re­tire.

“Our phones started light­ing up,” said Gonidakis, who was in Colum­bus at the time. He started call­ing friendly law­mak­ers in Wash­ing­ton and Ohio. “There were a lot of un­knowns right away and a lot of ex­cite­ment.”

At the cen­ter of the Ohio bill is a legal strat­egy based on ques­tion­ing one of the stan­dards that fed­eral abor­tion pro­tec­tions rest on: fe­tal vi­a­bil­ity. The Supreme Court has ruled that states can reg­u­late abor­tion only af­ter a fetus could sur­vive out­side a mother’s womb. The bill sug­gests that stan­dard be scrapped, and re­placed with some­thing else: a heart­beat.

Kristina Roeg­ner, a Re­pub­li­can state se­na­tor who spon­sored the bill, said vi­a­bil­ity was a flawed stan­dard be­cause med­i­cal tech­nol­ogy had changed so much since 1973.

“I don’t think the Supreme Court re­al­ized what a mov­ing tar­get they were creat­ing,” she said. “We need a new stan­dard. A heart­beat doesn’t change. It’s there, or it’s not.”

B. Jessie Hill, a lawyer who plans to chal­lenge the law in court on be­half of one of the abor­tion clin­ics in the state, thinks the ar­gu­ment is a long shot. The court was not per­suaded in the past by ar­gu­ments that a fetus is a per­son un­der state law. Sur­viv­ing out­side the womb is key, and for­bid­ding a woman to end a preg­nancy be­fore that is “like the state telling you that you have to give some­one a kid­ney or bone mar­row be­cause you have it and they need it to sur­vive,” she said. “The law can’t – and doesn’t – do that.”

Even be­fore the con­fir­ma­tion of Ka­vanaugh, con­ser­va­tives had made con­sid­er­able progress in ap­point­ments to fed­eral ap­peals courts, of­ten a crit­i­cal last stop be­fore the Supreme Court. To­day, Re­pub­li­cans have ap­pointed 69 per­cent of the ac­tive judges on the 6th U.S. Cir­cuit Court of Ap­peals, which en­com­passes Ohio, com­pared with 45 per­cent in 2001, ac­cord­ing to Rus­sell Wheeler, a vis­it­ing fel­low at the Brook­ings In­sti­tu­tion in Wash­ing­ton. Other states in the 6th Cir­cuit are Ten­nessee, Ken­tucky and Michi­gan.

“Ju­di­cial phi­los­o­phy has been the dom­i­nant is­sue for ap­pel­late nom­i­na­tions in Re­pub­li­can ad­min­is­tra­tions for the last 30 years in a way that it has not been for Democrats,” said Jonathan Adler, a law pro­fes­sor at Case Western Re­serve Uni­ver­sity.

That un­wa­ver­ing fo­cus has helped to turn the tide on abor­tion in a broad swath of the coun­try’s mid­dle and the south: Six states are down to one abor­tion clinic. In Ohio, there were 16 abor­tion clin­ics in the early 2000s. To­day there are seven.

Just last month in Ohio, in a rare move that was a ma­jor vic­tory for an­tiabor­tion ac­tivists, the full 6th Cir­cuit panel of judges re­versed its own de­ci­sion from a year ago, rul­ing against Planned Par­ent­hood in a fund­ing case.

Hill, the lawyer who will chal­lenge Ohio’s new ban in court, said she had rea­son­able con­fi­dence that the law will be struck down in lower courts and not make it to the Supreme Court, at least in the near term. Tak­ing such a case could be seen as po­lit­i­cal, and tar­nish the rep­u­ta­tion of the court, she said. But the long-term out­come is less clear. If Jus­tice Ruth Bader Gins­burg re­tires and Trump is able to ap­point a third jus­tice, that could be the de­ci­sive blow against Roe.

MADDIE MCGAR­VEY NYT

Michael Gonidakis, pres­i­dent of Ohio Right to Life, is shown Tues­day at the State­house in Colum­bus. Bans on abor­tion early in preg­nancy used to be rare, but things are chang­ing.

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