COLUMBUS, Ohio — Ohio Gov. John Kasich’s decision on Dec. 13 to sign a new state law to ban abortions past 20 weeks of pregnancy, while vetoing another bill that would have prohibited abortions at the moment a fetal heartbeat can be detected, has opened a debate in pro-life circles over legislative and judicial strategy.

Kasich’s supporters, which include Ohio Right to Life, say the governor was correct to veto the so-called “heartbeat bill” on grounds that the legislation would have almost surely lead to a costly, and ultimately losing, legal battle in the federal courts.

“We do agree with the philosophy of the heartbeat bill, but we are gravely concerned about the strategy because of the current hostility of the U.S. Supreme Court,” said Katherine Franklin, communications director of Ohio Right to Life.

Franklin told the Register that the Supreme Court’s current makeup of five abortion-friendly justices would likely reject the heartbeat bill, on grounds that the legislation violates the constitutional right to abortion before fetal viability, as decided in Roe v. Wade. A fetal heartbeat can be detected on ultrasound as early as the sixth week of pregnancy, about four months before the baby is viable outside of the womb.

In 2016, Franklin noted that the high court twice had the opportunity to address similar legislation, but refused both times, allowing lower court rulings to stand that found heartbeat laws to be unconstitutional in Arkansas and North Dakota.

Asking the Supreme Court to entertain a third heartbeat law at this time, some pro-life leaders and scholars argue, would cause irreparable damage to the pro-life movement.

“Because we have a hostile court, Ohio Right to Life is very loathe to give the Supreme Court yet another opportunity to strike it down or to make a mark against a bill that would by and large protect infant children when their heartbeat is detected,” Franklin said.

But Janet Porter of Faith2Action, an Ohio-based network of pro-life and pro-family groups, rejects those arguments. Porter was the heartbeat bill’s foremost champion, and her organization is working to mobilize voters in Ohio to demand that the state Legislature override Kasich’s veto.

“We have never been this close to banning abortion. We just can’t come this far and miss this opportunity. We just can’t,” Porter told the Register, adding that thousands of Ohio voters have been calling their lawmakers. She said those efforts are paying off, claiming that they are within one or two votes of forcing an override in the Ohio House of Representatives, though the override would still have to go through the Ohio Senate.

Porter accused Kasich of betraying pro-life voters and breaking his promise to be a pro-life governor.

Said Porter, “Kasich wasn’t elected to be a judge. His role as governor is to protect human life and take the wishes of the people, expressed through their elected officials, and sign the heartbeat bill into law.”

 

Kasich’s Arguments

In his veto message, Kasich said his decision to veto the heartbeat bill was “in the public interest” because the federal courts, when asked to review the law, would have to follow the U.S. Supreme Court’s abortion-related precedents, causing the law to be struck down and forcing the state to cover the legal fees of the pro-abortion activists.

“Furthermore, such a defeat invites additional challenges to Ohio’s strong legal protections for unborn life,” said Kasich, who added that as governor he has worked hard to strengthen Ohio’s protections for the sanctity of human life and respects the pro-life community’s work.

“He has done exactly what he needs to do,” Robert Destro, a law professor at The Catholic University of America, said of Kasich’s decision to veto the heartbeat bill. In an interview with the Register, Destro called the heartbeat bill “problematic.”

Said Destro, “As far as I can see, it would just give the litigators on the other end a blank check for their attorney fees. Why give them free money? My view is: You have to pick your battles in constitutional law.”

Both the heartbeat bill and the Pain-Capable Unborn Child Protection Act, which Kasich signed into law, are the types of legislation that invite legal challenge, said Clarke Forsythe, the acting president and senior counsel at Americans United for Life.

“There is clearly a big debate going on over strategy over the goals and wisdom of pro-life legislation, and those are two cutting-edge, push-the-envelope bills,” Forsythe told the Register.

Both Ohio bills challenge Roe v. Wade’s “viability” standard, which Forsythe calls an “arbitrary and capricious” rule imposed by the high court in its January 1973 decision that legalized abortion throughout the country. Forsythe characterized the heartbeat bill as a direct assault on Roe v. Wade.

“If the court were to uphold the heartbeat bill, there’s not much left of Roe v. Wade,” Forsythe said. “The question is: ‘What is the makeup of the court, and what is the best timing to challenge Roe?’”

 

The ‘Pain-Capable’ Bill

Even with the U.S. Supreme Court’s current makeup, other pro-life officials are confident that Kasich got it right by approving the Pain-Capable Unborn Child Protection Act, which bans abortions after five months of pregnancy on grounds that scientific evidence shows unborn babies can feel pain at the 20th week of pregnancy.

According to the National Right to Life Committee, Ohio is at least the 15th state to pass a version of the Pain-Capable Unborn Child Protection Act. The U.S. House of Representatives passed a similar bill on May 13, 2015, but the legislation failed to advance in the U.S. Senate.

Armed with scientific evidence that they argue proves a fetus feels pain at the 20th week of pregnancy, pro-life activists say the pain-capable legislation challenges Roe v. Wade and its viability standard.

“The 20-week ban was nationally designed to be the vehicle to end abortion in America. It challenges the current national abortion standard and properly moves the legal needle from viability to the baby’s ability to feel pain,” Mike Gonidakis, president of Ohio Right to Life, said in a prepared statement.

Franklin, also of Ohio Right to Life, told the Register that the Pain-Capable Unborn Child Protection Act presents a new compelling state interest to protect the rights of the unborn child before the point of viability.

“It wouldn’t necessarily reverse Roe v. Wade immediately, but it would erode that framework, and you’ve seen that happen over the course of these last 44 years,” Franklin said, noting that improvements in medical procedures and scientific knowledge have proven viability to be a “moving target,” as babies are surviving outside of the womb as early as 22 weeks.

“While we don’t think viability is workable, period, because human life begins at conception, we do think the court is going to have to back away from this very backward idea that viability is a determinate for when to protect the rights of unborn children,” Franklin said, adding that she believes the pain-capable legislation is tailored to appeal to U.S. Supreme Court Justice Anthony Kennedy, who has been a swing vote in many of the high court’s close decisions.

“Ultimately, we don’t want to protect babies at the moment of pain or heartbeat, but at the moment of conception,” Franklin said, “and that is always the goal of Ohio Right to Life — and it should always be the goal of all our pro-life leaders.”

 

 

Register correspondent Brian Fraga writes from Fall River, Massachusetts.