The surprise passage in the Ohio legislature of a so-called heartbeat bill — banning abortion as early as six weeks gestation — has sparked outrage among supporters of abortion rights nationwide.
But it is a mostly unnoticed ban on abortion at 20 weeks, which is expected to advance out of the Ohio House as early as Thursday, that may ultimately present the greater risk to abortion access.
The heartbeat bill, a perennial in the Ohio legislature, has never passed both chambers before, and it came this time as a last-minute attachment to a child abuse-related bill being considered in the lame duck session.
"We’ve been fighting this for about five years now," said Kellie Copeland, Executive Director of NARAL Pro-Choice Ohio. "We’ve always been able to bottle it up in the Senate."
That changed, Senate President Keith Faber told reporters this week, because of the election of Donald Trump: “New president, new Supreme Court justice appointees change the dynamic.”
The Supreme Court has held for over forty years that states cannot ban abortion before a fetus is viable, around 24 weeks. And not all abortion rights opponents share Faber's theory that the court will soon be ready to budge.
"I know everyone is swept up in Trump mania, but we have to be realistic," said Mike Gonidakis, president of Ohio Right to Life. "When you overreach, you lose. The courts can be very vicious to you."
Even if Trump acts quickly to replace deceased justice Antonin Scalia, whose seat Republicans refused to let President Obama fill, Gonidakis said another vacancy would be required. "It’s going to take another justice and we do not have a timeline," he said. "We have to be patient and strategic."
Any differences, however, are merely in how far to go and how fast. "If the court was 7-2 pro-life I would say, let’s do a ban at conception," said Gonidakis. "Lord willing, it will flip."
In fact, strategic disputes over whether to act against abortion rights incrementally or to go for dramatic sweeps like the heartbeat bill have roiled Ohio anti-abortion activists for years, even leading to some local chapters splitting from Gonidakis's group.
Ohio Right to Life's preferred vehicle for chipping away at Roe v. Wade is a ban on abortion at 20 weeks, mirroring the priorities of the National Right to Life Committee, which has championed such a ban at the federal level. As a ban on abortion several weeks before viability, it flies in the face of the current Supreme Court standard, but the hope is to nudge the court with the right test case.
While Ohio Right to Life is officially neutral on the heartbeat bill, having outright opposed it in the past, Gonidakis said of Ohio Gov. John Kasich, "I know we hope he signs the 20 week ban because we think it’ll be a game changer for the pro-life movement."
There is reason to believe Ohio Right to Life can count on Kasich. The governor expressed doubts about the heartbeat bill while running for president. Gonidakis also happens to wear another hat as Kasich's appointee to president of the state medical board, which progressive groups charge is a conflict of interest because of his advocacy work against abortion clinics. Kasich's press secretary, who did not respond to a request for comment, is a former Ohio Right to Life staffer.
"Governor Kasich has signed every bill that Ohio Right to Life put on his desk, seventeen of them," said Gonidakis. "I know we hope he signs the 20 week ban because we think it’ll be a game changer for the pro-life movement."
Copeland, of NARAL Pro-Choice Ohio, said Kasich "is very aggressive about using laws like the one struck down in Texas to go after and close a number of clinics in the state of Ohio. When he came in, Ohio had 16 abortion clinics, [we] were down to eight, and now we’re back up to nine."
Nationally, Kasich has sought to present himself as a moderate. He told CNN in August, referring to abortion, that Republicans “focus too much on just one issue.” The dueling abortion bills arguably present him with an opportunity to split the difference. If Kasich vetoes the heartbeat bill while quietly signing a 20 week ban into law, he would seemingly take the more measured path.
"Speaking just as Mike Gonidakis," said the Ohio Right to Life President, "I think that would set him up well."