Does The “Heartbeat Bill” Really Ban Abortion After Detectable Fetal Heartbeat?

On April 10, 2019, the Governor of Ohio State signed into a law, a bill that has been dubbed the “Heartbeat Bill.” Many headlines have suggested that the bill “bans abortions as early as 6 weeks into pregnancy” – when fetal heartbeat is detected.

But, does it?

The bill describes in multiple sections, in extensive detail, a requirement of a test for fetal heartbeat and a subsequent written informed consent by pregnant woman before abortion can be performed or induced. It then, in only one instant, say abortion is prohibited where a fetal heartbeat is detected. However, that one prohibitive clause is seemingly contradicted a couple paragraphs later.

Is this bill an actual ban or is it just a huge contradiction? Is it written intentionally to be open ended when it reaches the Supreme Court?

The following paragraphs lay out relevant sections of the bill and my brief interpretation.

The Bill As Written And Brief Analysis

A majority of the revision and amendment is regarding the States constitutional authority to make these changes, definitions of certain terms, medical requirements, and criminality if a violation occurs. This analysis will therefore only focus on relevant sections.

Note: the text in bold are direct quotes from the bill.

Section 2317.56(B).

“Except when there is a medical emergency or medical necessity, an abortion shall be performed or induced only if all of the following conditions are satisfied. 

The section goes on to give a list of conditions that must be complied with before an abortion can be induced or performed.

As part of the conditions, Section 2317.56(B)(3) states that the physician…shall [also] comply with the informed consent requirements in sections 2919.192 and 2919.194 below.

Section 2919.192.(A)

“A person who intends to perform or induce an abortion… shall determine whether there is a detectable fetal heartbeat… The method of determining the presence of a fetal heartbeat shall be consistent with the person’s good faith understanding of standard medical practice… The person who determines the presence or absence of a fetal heartbeat shall record in the pregnant woman’s medical record the estimated gestational age, the method used to test for a fetal heartbeat, the date and time of the test, and the results of the test.”

This is a requirement to conduct a test for a fetal heartbeat before an abortion is performed or induced. Subsections within this section provide an exception for medical emergencies

Section. 2919.193. (A)

…no person shall knowingly and purposefully perform or induce an abortion on a pregnant woman before determining [if there is] a detectable heartbeat.

This section requires that a test for fetal heartbeat must be conducted before abortion is performed. It makes it criminal to perform an abortion without first checking a for fetal heartbeat.

Section 2919.194 (A) 

Notwithstanding [subsection] (A)(3) of this section, if a person who intends to perform or induce an abortion on a pregnant woman has determined…that [there is] detectable [fetal] heartbeat, the person shall not… perform or induce the abortion without meeting all of the following requirements and without at least twenty-four hours elapsing after the last of the requirements is met:
(1) […] inform the pregnant woman in writing [the [presence of] fetal heartbeat.

(2) […] inform the pregnant woman of the statistical probability [carrying] to term based on the gestational age
(3) The pregnant woman shall sign a form acknowledging [receipt of the above] information

Here, the bill makes it illegal for anyone performing or inducing an abortion to do so without informing the mother of the presence of fetal heartbeat and acquiring written consent acknowledging the same. In addition to the informed consent requirement, the bill is requiring for a minimum of 24 hours wait period after receiving informed consent from the mother before proceeding with the abortion.

Section 2919.195(A)

“…No person shall knowingly and purposefully perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the unborn human individual the pregnant woman is carrying and whose fetal heartbeat has been detected in accordance with division (A) of section 2919.192.

If read alone, this section indicates that abortion after the detection of a fetal heartbeat is prohibited. Period.

However, when read with the rest of the bill, including previous sections and 2919.195 (D) below, the subsection quoted directly above seems to be a redundant or contradictory clause. It is also possible that the writers have a meaning that does not intend to be definitively prohibitive but is not readily clear. 

Section 2919.195(D)

[Subsection](A) of this section does not have the effect of repealing or limiting any other provision of the Revised Code that restricts or regulates the performance or inducement of an abortion by a particular method or during a particular stage of a pregnancy of this section.”

This subsection clearly states that subsection 2919.195 (A) does not “limit or repeal” any sections in the code that restricts or regulates abortion.

This then would mean that Subsection 2919.194, the section requiring only written informed consent a fetal heartbeat is detected before an abortion can be performed or induced, stands, despite 2919.195 (A).

At best, or worse depending on your stance on a females right to abortion, this bill is contradictory and cannot definitively be purported to ban the abortion of intrautrine pregnancy once a heartbeat is detected.

What say you? Read the bill here (under as enrolled) and let me know your thoughts in the comments below. 

Link: https://www.legislature.ohio.gov/legislation/legislation-documents?id=GA133-SB-23

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5 Comments

  1. Good analysis. It appears to me that the various sections of the bill taken or read together did not really ban abortion rather it provides the conditions under which an abortion can permitted.

    1. My point exactly. If they intended on actually banning it completely after a fetal heartbeat is detected, what then is the need to make provisions of when an abortion can occur after a heartbeat is detected…

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