This Valentine’s Day, Republican Ohio State Representative Lynn Wachtmann is expected to introduce the most restrictive anti-abortion bill in the country.  The measure, entitled the “Heartbeat Bill,” would prohibit abortions once there is evidence of a fetal heartbeat.  No consensus exists in the medical community as to when a heartbeat can be detected (some sources state as early as 18 days after conception while more conservative estimates are around 4 weeks).  The time frame advocated in this piece of legislation is clearly in violation of  the third trimester line drawn by the Supreme Court in Roe v. Wade. However, in Planned Parenthood of Southeastern PA v. Casey, the Court specifically rejected the trimester framework stating, “we do not consider [it] to be part of the essential holding of Roe.” Under Casey, states may restrict access to abortion if the restriction does not place an “undue burden” on the woman’s ability to seek an abortion “before the fetus attains viability.”   Because Casey does not discuss whether the right to abortion is still a fundamental right under Roe or the level of scrutiny applied when legislation creates an undue burden on the woman (and considering the current makeup of the Court),  state regulation of abortion may be easier to sustain.   For example, the Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart using a rational basis test once determining that the ban does not impose an undue burden.

Obviously, if this bill were to pass and signed into law, (so far, according to Mother Jones, 40 of 99 state legislators have co-sponsored the bill) it would place a substantial obstacle in the path of the woman.   Doing the math–if a heartbeat is detectable 18 days after conception, a woman would be prohibited from procuring an abortion within one week of missing her regular menstrual cycle.   Considering the weight of the decision, the cost of abortion, the limited access to clinics in this country, the inaccuracy of pregnancy confirmations, and all the other hardships pregnant women face, limiting the time frame to one week is a substantial obstacle in the woman’s path.  Furthermore, a 4-week-old fetus  is clearly not viable.  It is smaller than a grain of rice and looks like this.

The question now is whether “undue burden” will remain the standard.  Justice Thomas, joined by Justice Scalia, stated in his Gonzales concurrence, “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, have no basis in the Constitution.”  Justices Roberts and Alito probably agree.  Justice Kennedy, who joined the plurality in Casey and wrote the Gonzales opinion, is the swing vote.

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