Roundups Law and Policy

Legislative Lowlights: Ohio State House Passes ‘Heartbeat’ Ban

Brie Shea

If Ohio's "heartbeat" ban becomes law, it would be the second state this year to enact a near total abortion ban.

Rewire.News tracks anti-choice and anti-LGBTQ legislation as it works its way through state legislatures. Here’s an overview of the bills we’re watching.

Republican lawmakers in Ohio resurrected its “heartbeat” ban on abortion, and while most state legislatures are on break or finishing up last minute business, Texas and Arkansas are already gearing up for the 2019 legislative session.

Ohio

In a 60-35 vote Thursday, Ohio’s GOP-controlled state house passed a bill to ban abortion once a fetal heartbeat is detected—which can occur as early as six weeks into pregnancy and well before many people even realize they’re pregnant. Except in cases of emergency, HB 258 would make it a felony for providers to perform an abortion without first determining whether there is a detectable fetal heartbeat. The bill is similar to the 2016 heartbeat abortion ban that was vetoed by Gov. John Kasich (R). The bill now heads to the state senate. If it passes, Kasich could veto it again, but the GOP-controlled legislature may have enough votes to override it. If that happens, Ohio would be the second state this year to enact a near-total abortion ban. Iowa enacted a six-week abortion ban in May, which was quickly challenged in court. That law is temporarily blocked while the case is being decided. Both laws are clearly unconstitutional. But now that Brett Kavanaugh has joined the U.S. Supreme Court, the durability of Roe v. Wade isn’t so certain. Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, issued the following statement:

Today’s passage of an abortion ban in the Ohio House of Representatives is part of a broader strategy by anti-abortion politicians to push abortion care out of reach state by state, and is unfortunately a harbinger of what’s to come once anti-abortion state legislatures gavel back into session in 2019. This is also one of the first legislative attempts that takes direct aim at the constitutional right to abortion after the Supreme Court’s recent changes. The ACLU’s response if the Ohio bill becomes law? We’ll see you court.

On Wednesday, the state senate judiciary committee took up HB 36, a bill that would prohibit the state from requiring ministers to perform a marriage that goes against their religious belief—a right that is already protected under the First Amendment of the U.S. Constitution. But the “Pastor Protection Act,” which passed the state house in June, takes it a step further and allows undefined “religious societies” to deny the use of their buildings and property for any marriage ceremony that goes against their religious beliefs. If passed, any “religious society” could discriminate against same-sex couples—or even interfaith couples and others—without the threat of litigation. No hearing has been scheduled yet.

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Texas

On Monday, state Sen. Bob Hall (R-Edgewood) filed legislation proposing a state constitutional amendment granting the right to life to “unborn children” and prohibiting abortion to the extent authorized under federal constitutional law. This isn’t the first time Hall has attempted to pass a “personhood” amendment—he had an identical bill in 2016 which failed to pass. If the bill makes it through the legislature this time around, the amendment would be presented to voters in November of next year. If this sounds familiar, it’s because it’s the exact same thing that just happened in Alabama. There, voters actually approved granting rights to fertilized eggs and fetuses—potentially paving the way to criminalize abortion in the state.

The newly re-elected state senator—who in the last four years has sponsored or co-sponsored at least two dozen bills targeting reproductive and LGBTQ rights—also filed legislation Monday to allow certain counseling professions to discriminate against LGBTQ people. SB 85 would allow psychologists, marriage and family therapists, professional counselors, social workers, behavior analysts, and even chemical dependency counselors to refuse to provide services to a person if doing so would violate their “sincerely held” religious belief.

In the other chamber, state Rep. Valoree Swanson (R-Spring) filed legislation to prohibit physicians—at the risk of losing their medical license—from performing abortions. HB 47 would prohibit physicians and applicants for a medical license from performing an abortion unless it’s necessary to save the pregnant person’s life or avert a serious physical injury. The bill also provides exceptions for removing ectopic pregnancies and when, in the case of a multiple pregnancy, it’s necessary to ensure at least one “unborn child” is born alive. Swanson filed an identical bill in 2017 that failed to pass.

And now we have to talk about SB 154. Here at Legislative Lowlights, we usually only focus on all the bad stuff moving through state legislatures. But sometimes it’s complicated. Sometimes there are good bills that also have flaws. This is one of those times. Filed by state Sen. José Rodríguez (D-El Paso), this bill would allow a person to change the name and sex designation on their birth certificate if they provide proof to the state registrar that they have undergone a “clinically appropriate treatment for the purpose of transitioning to another sex.”

Currently in Texas, if a person wants to change the sex designation on their birth certificate, they would need to petition a judge for an order stating they are now male or female and provide proof of surgery. According to the National Center for Transgender Equality, the state “does not have a specific gender marker provision in its birth certificate amendment statute, and current case law and evidence indicates that some Texas officials and judges are adverse to issuing the necessary court orders.”

This means SB 154 would actually be an improvement for transgender rights in the state. It would allow people to bypass the courts—a process that can be time-consuming, expensive, and often unsuccessful. The bill doesn’t add any restrictions or additional hoops for transgender folks to jump through in order to obtain a birth certificate that accurately reflects their gender identity. It also ensures that the new birth certificate not include the applicant’s prior name and sex if that information is no longer accurate.

That being said, if this piece of legislation were introduced in California, Iowa, New York, Oregon, Vermont, or Washington—all states that do not require surgery for those applying to change a birth certificate—this would be considered a restrictive, anti-trans bill. That’s because it’s not clear if SB 154 actually removes the surgery requirement. Requiring a person to undergo some form of treatment or surgery can pose undue hardships on transgender folks, especially when it’s not clear what type of treatment would qualify. And not all transgender people require, or can even access, such procedures. Transition-related care can be expensive and not all state and private insurance providers will cover the costs.

But at the end of the day, this bill was introduced in a state that could use all the transgender protections it can get—a fact the bill’s author also seems to realize. In addition to SB 154, Rodríguez filed legislation to prohibit discrimination in public accommodation on the basis of sexual orientation or gender identity; to repeal the criminal offense of homosexual conduct, which is still on the books in Texas for some reason; and to make statutory changes to accurately reflect and address same-sex marriages and parenting relationships. So we’ll be keeping an eye on this bill—and we hope improved legislation will soon follow.

Michigan

Michigan’s telemedicine abortion ban is set to expire at the end of the year, and at least one Republican lawmaker doesn’t want that happening. Passed in 2012, the law requires doctors to personally perform a physical examination of the patient prior to prescribing a medical abortion. When prescribing a medical abortion, the doctor must be physically present at the location of the abortion when the drug is dispensed and may not use any type of web camera to facilitate the process. Last week—possibly in anticipation of an incoming Democratic governor—state Sen. Tom Casperson (R-Escanaba) introduced SB 1198, which would eliminate the sunset provision and make the ban on telemedicine abortion permanent. The bill was referred to the state senate health policy committee, and no hearing has been scheduled.

Arkansas

State Sen. Trent Garner (R-El Dorado) filed legislation Thursday requiring physicians and health-care facilities to file a report with the health department regarding each person under their care who has been diagnosed or treated for a complication that may be the result of an abortion. The bill is similar to an Idaho law passed earlier this year that is currently being challenged in court.

Garner also filed legislation prohibiting physicians from performing or attempting to perform an abortion if they know the pregnant person wants it due to a possibility that the fetus has Down Syndrome. This restriction is similar to one found in a blocked provision of a 2016 Indiana law that might end up being reviewed by the U.S. Supreme Court. Additionally, the “Down Syndrome Discrimination by Abortion Prohibition Act” includes an ambiguous forced waiting requirement. The bill requires doctors to request the medical records of the pregnant person relating directly to their entire pregnancy history. The physician would be prohibited from performing an abortion until “reasonable time and effort is spent” to obtain the pregnant person’s medical records.

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