A pre-viability ban has failed in Ohio, and a pre-viability ban has passed in Ohio.
John Kasich, the state’s Republican governor who was inexplicably branded a moderate during the 2016 presidential primary, vetoed a bill on Tuesday that would have banned abortion at 6 weeks–which is before some people even know they’re pregnant–but separately signed another bill into law that bans abortion at 20 weeks.
Both measures banned abortion pre-viability, and both appear to violate Roe v. Wade on those terms.
Roe, the landmark abortion ruling that legalized the procedure in all 50 states, is vague about the legal definition of viability—the point at which a fetus could survive outside the womb—but references the medical consensus that it typically occurs between 24 and 28 weeks.
That’s why some states have seen their 20-week abortion bans blocked by the courts. A federal court ruling on Arizona’s 20-week ban, which was struck down in 2013, makes this pretty plain:
And in 2015, a federal appeals court struck down a similar ban in Georgia on the grounds that it “places an arbitrary time limit on when women can obtain abortions.”
This hasn’t stopped other states, or Congress, for that matter, from advancing identical bans. All told, 20-week bills have been enacted in 18 states. The logic, which you can see in Kasich’s remarks while signing the bill–which he called “the best, most legally sound and sustainable approach to protecting the sanctity of human life”–is that these bans present a more complicated test for the protections of Roe.
Which is also what all of this is about.
Abortion bans are about banning abortion by whatever means a state can come up with, but they’re also largely about throwing shit at Roe and seeing if it sticks. When House Republicans passed a 20-week ban in 2015, Marjorie Dannenfelser, the president of the anti-abortion Susan B. Anthony List, told the Huffington Post she expected to prevail in a legal challenge: “Our belief is that this bill, in particular, would be upheld by the court.”
And with Donald Trump now in charge of nominating judges to the Supreme Court and filling a dizzying number of federal vacancies, we could see courts friendlier to bans that toy with the legal and medical definitions of viability, effectively taking that determination out of the hands of women and doctors and leaving it to legislators.
It’s an emerging political shift that Kasich, Dannenfelser, and other anti-abortion activists are almost certainly banking on.