Governor John Kasich with Ohio Senate President Keith Faber in Columbus. Credit Kantele Franko/Associated Press
The Ohio Legislature passed a bill on Tuesday to ban abortion at six weeks, with a shout-out by the top Senate Republican, Keith Faber, to the incoming president. Donald J. Trump’s election motivated Republicans, who had introduced similar bills before without getting them across the finish line, Senate President Faber suggested. He also said of the ban’s prospects of being upheld in court, “I think it has a better chance than before.”
At the moment, a ban on abortion at six weeks remains clearly unconstitutional, as it has been for 43 years, ever since the Supreme Court decided Roe v. Wade in 1973. One other state — North Dakota — enacted a six-week abortion ban three years ago to test the boundaries of Roe, but that law was struck down in court. Maybe Ohio’s Republican governor, John Kasich, will cite the result in North Dakota as reason to veto this new measure. But as Senator Faber suggested, it’s no longer an entirely sure bet that a state ban on abortion at six weeks can never stand. If a Trump presidency includes multiple Supreme Court appointments, women seeking abortions may find the earth shifting beneath them.
Republican-led states will be ready for any such shift. They have been passing abortion restrictions at a fast clip since 2011, when half the Statehouses came under Republican control. Last July, the count stood at 334 new restrictions enacted over the last five years in 32 states, according to the Guttmacher Institute. Most of the laws aren’t outright bans on abortion in the first trimester (when more than 90 percent of the procedures occur). Instead, they target late-term abortions, or wrap abortion providers in red tape, or regulate the provision of drugs that induce medical abortions.
Most of these laws were not written to directly flout Roe. Instead, they aimed to test the Supreme Court’s willingness to whittle away at women’s access to abortion in the name of protecting their health. But in June, the Supreme Court rejected the whole premise, in striking down a Texas law that required clinics to be outfitted like surgical centers and abortion providers to have admitting privileges at local hospitals. The American Medical Association, among others, told the court that these provisions served “no medical purpose” and did “nothing to improve the health and safety of women.” Abortion is a relatively safe procedure to begin with, and if states want to do more to minimize the risk to women, the medical evidence shows, they should ensure access to abortion in the early stages of pregnancy. Five justices accepted these clear findings, and abortion rights advocates celebrated a major victory.
It seemed as if the fundamental fight was over. Abortion would remain a national right. At least one clinic would remain open in every state. Republican legislators would stop passing symbolic bans.
That was last summer. It seems like a long time ago. The future Keith Faber imagines isn’t here yet. But it can no longer be ruled out.