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A Total Abortion Ban In Ohio? Unlikely And Probably Unconstitutional

In June 2017, protestors dressed in costumes from the dystopian TV series "The Handmaid's Tale" sit in a committee hearing to oppose a bill banning a common procedure used in second-trimester abortions.
Jo Ingles
Statehouse News Bureau
In June, protestors dressed in costumes from the dystopian TV series "The Handmaid's Tale" sit in a committee hearing to oppose a bill banning a common procedure used in second-trimester abortions.

A newly introduced bill from Ohio Republicans that would outlaw abortion entirely is getting a lot of attention on social media and around water coolers. But will it get serious consideration from lawmakers, especially considering some abortion bills – including far less extreme proposals – have not passed? 

HB 565 would declare abortion to be murder and ban it at all stages of pregnancy and in all cases - including rape and incest. On its face, the goal of the ban is pure and simple.

But Mike Gonidakis with Ohio Right to Life says the 284-page bill is anything but simple.

“We are trying to figure out what this bill actually means and what it does,” Gonidakis says. “We were not involved with the drafting of the bill. We were not asked for counsel or opinions.”

Gonidakis says lawmakers from both sides of the aisle are looking for clarification on the details of the bill before determining whether they want to support it. His organization did not endorse the controversial bill that would ban abortion at the point a fetal heartbeat could be detected, because of concerns about its constitutionality.

The organization has not endorsed this bill, either. But Gonidakis says he needs some clear answers to important questions before the group would.

“Could this lead to a woman who has had a miscarriage being arrested and getting charged?” he asks. “What about victims of human trafficking, who their pimps and johns force them to have abortions – are they now legally liable for a charge? You know, we don’t the answers to these questions yet and so we are very sensitive to this.”

There is another question to consider. If this bill actually passed through the legislature, would Gov. John Kasich sign it? He vetoed that so-called “heartbeat bill” after it passed in 2016, and this bill goes even further.

But Kasich is term-limited. And that’s something Gabriel Mann of NARAL Pro-Choice Ohio says makes this year’s gubernatorial race even more important.

“This bill, it might not pass in 2018 but in 2019, if Ohioans fail to choose a pro-choice governor, it’s a whole new ball game,” Mann says.

Republican state Reps. Ron Hood and Nino Vitale are the main sponsors of this new bill. Both are endorsed by Ohio Right to Life, and both have two opponents in the May primary.

Some of the 18 Republicans who have signed onto the bill as co-sponsors are also facing primary challenges and one, state Rep. Robert Sprague, is running for state treasurer. Mann says there is a political reality here.

“They are looking to energize conservative voters who might not be too thrilled with what they are seeing from Trump and might not be too excited about the 2018 election,” Mann says. “You know, these conservatives are trying to move their base with this.”

And Mann says the bill’s unconstitutionality doesn’t matter to those who want it passed at the state or federal level. 

“I don’t think anybody thinks that this is constitutional,” Mann says. “It was designed to overturn Roe v. Wade. This is meant to be a test case to go straight to the U.S. Supreme Court in hopes that Trump is going to get to pick another nominee to the court.”

Gonidakis says there’s no doubt his group would love to see abortion banned. But he says backing legislation that is certainly unconstitutional is not a good strategy.

“If you’re not careful in crafting good pro-life legislation, you are ultimately going to lose and when you lose in the federal courts, it has ramifications,” Gonidakis explains.

Gonidakis says blatantly unconstitutional legislation that is challenged in court could actually hurt his group’s cause. Republican House Speaker Cliff Rosenberger has cosponsored other anti-abortion bills but hasn't signed on to this one, saying he’s still looking at details of it.

Gov. Kasich has not signaled where he stands on the legislation either. But it doesn’t appear likely this bill will get any traction any time soon.

Jo Ingles is a professional journalist who covers politics and Ohio government for the Ohio Public Radio and Television for the Ohio Public Radio and Television Statehouse News Bureau. She reports on issues of importance to Ohioans including education, legislation, politics, and life and death issues such as capital punishment.