Ohio abortion bill might go against constitution

Toledoan fears it would affirm 'Roe'

State Representative Lynn Wachtmann testifies during a Health, Human Services & Aging Committee hearing about House Bill 125, also known as the Heartbeat Bill.
State Representative Lynn Wachtmann testifies during a Health, Human Services & Aging Committee hearing about House Bill 125, also known as the Heartbeat Bill.

COLUMBUS -- Lee J. Strang is a board member of Toledo Area Right to Life.

But he's also a constitutional law professor at the University of Toledo, and that part of him told the Senate Health, Human Services, and Aging Committee Tuesday night that a bill before it that would give Ohio the strictest bill against abortion rights in the nation and is likely unconstitutional.

"It would provide yet another case affirming Roe vs. Wade,'' he said. "A case striking down the Heartbeat Bill's ban on post-heartbeat abortions would cement Roe deeper into the law. But to make matters worse, a Supreme Court precedent striking down House Bill 125's ban and affirming Roe would stop the momentum the pro-life movement has worked so hard to build.''

House Bill 125, sponsored by Rep. Lynn Wachtmann (R., Napoleon). would require a doctor to perform tests for a fetal heartbeat and, absent a danger to the mother's life, would prohibit an abortion if one is found. A fetal heartbeat could be detected as early as six weeks into a pregnancy.

The bill has splintered abortion factions in the state, pitting abortion opponents against one another and against pro-choice advocates who consider the bill to be a full assault on a woman's access to a legal abortion.

Part of the debate comes down to where U.S. Supreme Court Justice Anthony Kennedy, the frequent swing vote in 5-4 cases, would be if presented with an opportunity to reverse the landmark 1973 Roe decision that expanded the right to privacy to include a woman's decision to have an abortion.

Supporters of the bill want to give Justice Kennedy the chance. Others like Mr. Strang in the national and Ohio Right to Life networks argue it could be a big mistake.

"They don't know,'' said Janet Porter, president for Faith2Faith and a primary architect of the bill. "The discussion that they're having is what happens if we're wrong. Their feeling is we better not try anything because we might lose, and that's not how you win.

"We've lived through this before,'' she said. "You can't tell me otherwise, because I was the one who worked to pass our partial-birth abortion ban. What we saw is the courts initially said 'no,' only to say 'yes' later.''

Hearings will continue on the bill Wednesday, the last day of session before lawmakers recess for the holidays. No vote is scheduled, but supporters of the bill have submitted a number of proposed amendments that they insist will not change the primary impetus of the bill and, if passed, get it ultimately before the high court.

Ohio Right to Life, however, prefers only the portion of the proposed law that would make a fetal heartbeat audible and visible to a pregnant woman as part of the process of giving informed consent to an abortion. That, according to Mr. Strang, would be constitutional and another incremental gain for the cause.

"The existence of a detectable heartbeat, as the legislative findings indicate, is relevant to the likelihood that the child will come to term, absent an abortion,'' Mr. Strang said. "This fact is not commonly known, and, therefore, imparting it to mothers contemplating abortion provides them with an important point of comparison between abortion and continuing their pregnancies.''

Several doctors, however, essentially told the committee to butt out of what they said is not their business.

"Lawmakers do not belong in the consultation room with me and my patients,'' said Dr. Lisa Perriera, a Cleveland obstetrician/gynecologist.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.