The XX Factor

Ohio Is Now Home to an Unconstitutional 20-Week Abortion Ban

Ohio Governor John Kasich on April 13, 2016 in Savage, Maryland.

Mark Wilson/Getty Images

Ohio Governor John Kasich signed a bill on Tuesday banning abortions performed after the 20th week of pregnancy. Bans like these, which exist in more than a dozen other states, are unconstitutional—they prohibit legal abortions before the fetus becomes viable around 24 weeks, a threshold set forth by Roe v. Wade.

The Ohio state legislature passed the bill last week, just after it passed a far more restrictive bill that would have outlawed abortions after about six weeks’ gestation, before many women even know they’re pregnant.

Kasich vetoed that bill on Tuesday, confirming some suspicions that the six-week ban was a gambit to distract from the 20-week ban, an easier-to-swallow restriction and a less-obvious violation of the Constitution for some observers. The six-week ban—spun as a “heartbeat bill” by right-wingers, since fetal pole cardiac activity can usually be detected when an embryo is at six week’s gestation—was not, in the end, Kasich and company’s bid to get a Trump-stacked Supreme Court to reconsider Roe altogether. It was a foil to an equally unconstitutional restriction that will likely cause a lot less uproar, and might actually stand a chance at chipping away at Roe under a certain court makeup.

Anti-abortion activists have pushed for 20-week abortion bans under the spurious pretense that fetuses can feel pain at that point in gestation. This political claim runs against medical knowledge of fetal development; a comprehensive 2005 review of available data published in JAMA determined that fetuses are unlikely to have the capacity to experience pain until the third trimester. In any case, less than 1 percent of all abortions are performed after 20 weeks, most of them for women who’ve just developed a health problem or discovered that their fetus has a severe abnormality.

On the upside, federal judges have previously found 20-week abortion bans unconstitutional in Arizona and Idaho, and a coalition of reproductive rights groups recently filed a lawsuit against North Carolina for its own 20-week ban. But court challenges take time. Even if this latest affront to women’s bodily autonomy and the Constitution gets axed in the future, Ohio women will suffer the consequences in the meantime.