Two days ago, Ohio Governor John Kasich vetoed “fetal heartbeat” legislation at the urging of Ohio Right to Life.⁽¹⁾Part of Ohio House Bill 493, originally filed as House Bill 69.

Governor Kasich issued a statement explaining that he vetoed the legislation because the U.S. Supreme Court would just strike it down.

Instead, he signed a “20-week ban” on abortions.⁽²⁾See Ohio Right to Life’s response here. But what exactly does this new law do?

Existing Law

Ohio law already prohibited abortions after 19 weeks, unless the unborn baby was “not viable.” ⁽³⁾ORC 2919.18(a) Ohio law prohibited the abortion of a baby which was “viable.” ⁽⁴⁾ORC 2919.17. See ORC 2919.16(m) for definition of “viable.”

Although a younger child may also be considered viable, “there is a rebuttable presumption that an unborn child of at least twenty-four weeks gestational age is viable.” ⁽⁵⁾ORC 2919.17(E).

So the general rule was that any baby under 20 weeks could be killed, and any baby over 23 weeks could not. In the middle, viable babies could not be killed, but non-viable babies could be.

An exception to those prohibitions existed if the abortion “was necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.” ⁽⁶⁾ORC 2919.17(B)(1)(b). A similar exception applies to the bill signed this week.

Effect of New “20-Week Ban”

In 2015, 0.7% of abortions in Ohio took place at 21 weeks or over.⁽⁷⁾2015 Ohio Abortion Statistics: http://www.odh.ohio.gov/-/media/ODH/ASSETS/Files/health-statistics—vital-stats/Induced-Abortions-in-Ohio-2015.pdf?la=en Unless the health of the mother exception applied, the bill signed this week would either prevent the death of those babies or require them to be killed earlier.

In 2015, 1.6% of abortions in Ohio took place at 19-20 weeks.⁽⁸⁾2015 Ohio Abortion Statistics: http://www.odh.ohio.gov/-/media/ODH/ASSETS/Files/health-statistics—vital-stats/Induced-Abortions-in-Ohio-2015.pdf?la=en The bill signed this week would only apply to those born during week 20 and up. The statistics do not show how many of those abortions took place during week 19 and how many took place during week 20. For the sake of argument, we will assume that half of those abortions occurred during week 19 and half during week 20. This would put 0.8% of abortions taking place during week 20.

Based upon the above, 1.5% of abortions would be prohibited by the new law, which would either prevent the death of those babies or require them to be killed earlier (unless the health of the mother exception applied).

It is not clear how many of those abortions were claimed to be “necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.” For the sake of argument, we will assume that the health of the mother exception did not apply to any of them.

1.5% of abortions would be 1 out of every 66 abortions (rounded down).

Victory?

In other words, 43 years of incrementalism has gotten us to a law that, if no health of the mother exception applies, prevents (or requires to be done earlier), 1 out of every 66 abortions.

In 2015, the Ohio ratio of abortions to live births was 142:1000.⁽⁹⁾2015 Ohio Abortion Statistics: http://www.odh.ohio.gov/-/media/ODH/ASSETS/Files/health-statistics—vital-stats/Induced-Abortions-in-Ohio-2015.pdf?la=en The law signed this week would presumably reduce that, to 140:1000 (unless those babies are simply killed earlier).

And this was all done in the name of making Ohio’s laws most palatable to the U.S. Supreme Court.⁽¹⁰⁾”Ohio Right to Life asked Kasich on Monday to veto the bill…. Katherine Franklin, a spokeswoman for Ohio Right to Life, said in an email her group backs the 20-week abortion ban instead. ‘Both are pre-viability bans, but we believe [the 20-week ban] is the best strategy for overturning Roe v. Wade and will ultimately prove most palatable to the Supreme Court,’ Franklin said. ‘It’s not just the Ohio strategy but the national strategy'” (emphasis added). http://thehill.com/policy/healthcare/310238-kasich-signs-20-week-abortion-ban-vetoes-heartbeat-bill (accessed on December 15, 2016).

If you want to call that victory, your standard is different from ours, to say the least.

But even more important than whether this represents a victory, we must ask ourselves the question, what if all of these incremental baby steps actually do more harm than good?

 
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Update: Why we oppose regulating murder via heartbeat bills.