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Is a Challenge to Roe a Heartbeat Away? Ohio's New Anti-Abortion Measure

On December 7th, the Ohio legislature passed a law that would outlaw abortion after the fetus’ heartbeat could be detected, which in some cases is as early as six weeks.

The bill “would make it a fifth-degree felony, punishable by up to one year in prison, for a physician to perform an abortion without checking for a fetal heartbeat or performing the procedure after it can be detected.”

The so-called “Heartbeat Law” had been debated in previous legislative sessions, but had never made it through the state senate. This time, the senate passed the bill 21-to-10.

As I record this broadcast, the bill—along with another bill that prohibits abortion after 20 weeks—sits on Governor John Kasich’s desk, awaiting his action.

This is potentially a big deal. Here’s why.

This is not the first time such a measure has been enacted at the state level. In 2013, both North Dakota and Arkansas enacted measures that were similar to the Ohio measure. In both instances, the bills were quickly struck down by federal courts. And in January of this year, the Supreme Court declined to hear these cases on appeal.

This legal track record is why Ohio Right to Life did not support the bill and why Governor Kasich has expressed doubts about its constitutionality.

Yet in addition to the senate, the bill also passed by a 56 to 39 margin in the Ohio house. Why? Well, as Ohio Senate President Keith Faber told the Columbus Dispatch, we have “a new  president, new Supreme Court appointees, and there was consensus in our caucus to move forward.” Therefore, Faber added, the bill “has a better chance than it did before.”

Faber is obviously referring to the prospect of president-elect Trump nominating, and the Senate approving, at least one if not more Scalia-like conservatives to the Supreme Court.

The timing here is what’s interesting. Assuming the bill becomes law, it will certainly be challenged in federal court, where, as Ohio Right to Life and Governor John Kasich rightly suspect, it will be struck down by a federal district court judge. As the law now stands, it could hardly be otherwise.

That’s where the interesting part starts. Appeals take time, and by the time the case makes its way through the courts, a lot could have changed, including even a second opening on the Supreme Court.

And even if this law does not become the vehicle to overturn Roe and return the issue of abortion to the states, it could be a vehicle for chipping away at Roe’s impact. A case in point: North Dakota’s “heartbeat bill,” which North Dakota Governor Jack Dalrymple called “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

Until recently, most states and people simply assumed Roe was sacrosanct and that any attempt to restrict abortion was legally impermissible. Thankfully, in more recent years, people at the state level have challenged that assumption. Which is exactly why, during the election season, Eric Metaxas and I reminded voters that the down ticket ballot was so crucial.

Sometimes, as in the Supreme Court’s recent decision regarding Texas abortion clinics, unborn children lose to politics, but we never stop trying. We can’t stop trying. This Ohio bill is a big deal. If nothing else, it keeps pressure on Roe and its defenders.

And so we await the governor’s action. Even if he vetoes it, the veto can be overturned by a three-fifths vote of both the Senate and the House, which, for the record, the GOP controls by more than the necessary margin.

And while we wait for Ohio lawmakers to act, you and I must act. By praying. Pray, pray, pray. And to help, I’m pleased to announce we’ve just released our 21 Days of Prayer for Life as a free digital download. Just come to BreakPoint.org/21days.


BreakPoint is a Christian worldview ministry that seeks to build and resource a movement of Christians committed to living and defending Christian worldview in all areas of life. Begun by Chuck Colson in 1991 as a daily radio broadcast, BreakPoint provides a Christian perspective on today’s news and trends via radio, interactive media, and print. Today BreakPoint commentaries, co-hosted by Eric Metaxas and John Stonestreet, air daily on more than 1,200 outlets with an estimated weekly listening audience of eight million people. Feel free to contact us at BreakPoint.org where you can read and search answers to common questions.

John Stonestreet, the host of The Point, a daily national radio program, provides thought-provoking commentaries on current events and life issues from a biblical worldview. John holds degrees from Trinity Evangelical Divinity School (IL) and Bryan College (TN), and is the co-author of Making Sense of Your World: A Biblical Worldview.

Photo courtesy: Thinkstockphotos.com

Publication date: December 12, 2016

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