U.S. District Judge Michael Barrett in Cincinnati issued a preliminary injunction (pdf) against enforcing the “Heartbeat Protection Act,” saying it imposed an “‘undue burden’ on a woman’s right to choose a pre-viability abortion.”
Barrett in his ruling said that enforcing Ohio’s law would cause “irreparable harm” to patients by undermining their “well-settled” constitutional right to abortion access.
“The law is well-settled that women possess a fundamental constitutional right of access to abortions,” he wrote.
“To the extent that the State of Ohio is making a deliberate effort to overturn Roe v. Wade and established constitutional precedent, those arguments must be made to a higher court,” he wrote.
Ohio Right to Life, the state’s oldest and largest pro-life group, called the judge’s decision disappointing but not surprising.
“The heartbeat bill has the potential to be the vehicle that overturns Roe v. Wade,” Mike Gonidakis, the group’s president, said in a statement. “We know that this temporary restraining order is just a step in the process to finally seeing Roe reconsidered.”
Pro-abortion advocates praised the decision.
“With Gov. DeWine’s attack on abortion rights now blocked, the doctors, nurses, staff, and volunteers at nine facilities across the state can continue to assist patients in safely terminating a pregnancy,” NARAL Pro-Choice Ohio Deputy Director Jaime Miracle said in an emailed statement.
Ohio’s Heartbeat Law
The heartbeat law had been signed by Republican Ohio Governor Mike DeWine on April 11, following passage by the Republican-controlled state legislature, and was scheduled to take effect on July 11.
The law would ban abortion on fetuses after a fetal heartbeat is detected, but includes exceptions for medical emergencies or medical necessities. The law does not include exception for rape or incest. Physicians could face fines up to $20,000 if they violate the law.
A fetal heartbeat can be detected as early as six weeks into the pregnancy, before many women may be aware they are pregnant.
The law would require physicians to test for a fetal heartbeat if a woman came to them seeking an abortion. It also includes a rule that the physician would need to meet the woman at least 24 hours before the abortion to “give her an adequate opportunity to ask questions about the abortion.”
Ohio’s law was challenged by the American Civil Liberties Union and Planned Parenthood, which said it could end 90 percent of abortions in the state.
Freda Levenson, legal director for the ACLU of Ohio, said in a statement following Barrett’s July 3 decision: “Today, the court has upheld the clear law: women in Ohio … have the constitutional right to make this deeply personal decision about their own bodies without interference from the state.”
DeWine’s spokesman Dan Tierney told Reuters in an email following Barrett’s July 3 decision, “Gov. DeWine has long believed that this issue would ultimately be decided by the U.S. Supreme Court.”
Republican state Rep. Candice Keller previously said that the heartbeat law would save some 20,000 babies a year from being aborted in the state.
Recent Abortion Restrictions
Ohio is among several other states that have considered similar heartbeat laws this year, including Kentucky, Mississippi, Georgia, and Louisiana. However, judges have blocked the heartbeat laws in Kentucky and Mississippi.
Meanwhile, a number of states have recently enacted other forms of abortion restrictions. Alabama’s governor signed a measure on May 15 making the abortion a felony in nearly all cases—the exception being for cases where abortion is needed to prevent a serious health risk to the mother. Missouri on May 24 signed into law an eight-week ban on abortion.
Roe v. Wade
The latest abortion-ban measures were aimed in part to provoke court challenges that might lead the Supreme Court to reconsider Roe v. Wade.
The 1973 Roe v. Wade decision established that it is part of a woman’s “right to privacy” to undergo abortion (pdf). States can only ban abortion after “viability,” meaning “potentially able to live outside the mother’s womb, albeit with artificial aid.”
The Supreme Court’s 1973 decision said that if unborn children are persons, then they have the right to life. The ruling determined that unborn children are not persons, but acknowledged that “if this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’s right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
The Story of ‘Jane Roe’
The Roe v. Wade decision was based on the case of Norma McCorvey, a 21-year-old drug addict who was living on the streets when she fell pregnant in 1969 with her third child. McCorvey had already given up one child for adoption.
Norma McCorvey, the real name of “Jane Roe” from Roe v. Wade:
1. Lied about being raped
2. Said she was used by lawyers who simply wanted to change abortion laws
3. Sought, in 2004, to have Roe v wade overturned
4. Called her involvement in Roe the biggest mistake of her life pic.twitter.com/rGmMx2TgaE
— Adrian Norman (@AdrianNormanDC) May 16, 2019
McCorvey said at the time that she’d been raped and applied for a legal abortion in Texas. However, because she couldn’t provide a police report proving that she had reported the rape, her request for the abortion was refused.
She was approached by Linda Coffee, a lawyer who wanted to challenge abortion restrictions and was looking for a pregnant woman as the plaintiff for her case. McCorvey became that woman and entered the lawsuit anonymously as “Jane Roe.”
Together with another lawyer, Sarah Weddington, who ultimately argued the case before the Supreme Court, Coffee got the Roe v. Wade 7–2 decision in 1973 saying that a woman has a right to abortion “free of interference by the state.”
Decades later, McCorvey admitted that she made up the rape story. She said that at the time, she didn’t want to go through the pain of giving up another baby for adoption, so she opted for abortion instead. But because the case took years to resolve, she ended up having the baby and putting it up for adoption.
“I am glad today that that child is alive and that I did not elect to abort,” she said in her 2005 congressional testimony (pdf).
McCorvey said that after spending years working at abortion clinics, she realized that abortion is wrong, not only because it kills the unborn, but because it traumatizes the women who undergo it.
“Participating in the murder of your own child will eat away at your conscience forever if you do not take steps to cleanse your conscience,” she said.
McCorvey also said she felt partially responsible by letting her story be used in the lawsuit.
Reuters, The Associated Press, and Petr Svab contributed to this report