In Kings 3:5-14, King Solomon threatens to split a baby in order to force the truth to the surface in a dispute over its parentage. John Kasich tried to do something similar yesterday when faced with two pro-life bills limiting abortion — one to 20 weeks, and the other to when a heartbeat can be detected, which is usually in the first trimester. The Ohio governor vetoed the latter but signed the former, citing Supreme Court precedent for the difference, even though it’s almost certain both will run into opposition in the judiciary:
Ohio Gov. John Kasich on Tuesday vetoed a controversial bill that would have banned abortions as early as six weeks into pregnancy but signed a measure prohibiting the procedure later in pregnancy.
The measure the Republican governor rejected would have barred a woman from obtaining an abortion if a fetal heartbeat could be detected. The legislature passed the measure last week even though it conflicts with Supreme Court decisions upholding the right to abortion at least until the point at which the fetus is viable. The bill he signed, banning the procedure at 20 weeks of pregnancy, may run afoul of these rulings, because viability is generally interpreted to be around 24 weeks.
It’ll be easier to defend the 20-week limitation in court, Kasich explained:
In a statement, Kasich said he vetoed what has been called the “heartbeat bill” because it was “clearly contrary” to Supreme Court rulings. The state would have been forced to spend hundreds of thousands of dollars trying unsuccessfully to defend the law and would have provoked lawsuits that would end up rolling back other restrictions enacted by the state, he said.
In a separate statement, he said he agreed with major antiabortion groups that have preferred to challenge precedent with the 20-week ban, which he said “is the best, most legally sound and sustainable approach to protecting the sanctity of human life.”
That may be a distinction without a difference. In 2014, the Supreme Court let stand a 9th Circuit ruling that struck down Arizona’s 20-week ban as an infringement on the right to an abortion by refusing to take up an appeal. That’s not quite precedent, but it’s pretty close to it and a fair indicator of where the court was at the time, considering that it only takes four consenting justices to grant certiorari. Assuming a challenge gets to the Supreme Court, it’s likely to suffer the same fate, even with Trump replacing Antonin Scalia.
By the time a challenge gets to the court on the new Ohio statute, however, Trump might have replaced more than one justice. If he replaces an opening on the liberal wing, the Supreme Court might take a decidedly different approach on abortion and could sustain the 20-week ban. If that’s the bet Kasich is taking, though, why not go for the fetal heartbeat bill instead? Why not sign both bills and set up a showdown over Roe v Wade a couple of years down the road? That would have put pressure on Trump to appoint genuine conservatives to the bench, and an opening for a re-election cycle challenge if he failed to do so.
Finally, a reliance on the longer limit might be the most legally and politically sustainable approach to curtailing abortion, but it’s not the most scientifically or ethically sound approach. Rather than acknowledge the obvious life and humanity detected by the independent heartbeat of the child, Kasich instead relies on the much more ambiguous concept of “viability” as a legal guide. The focus on viability keeps this debate on utilitarian grounds, precisely where abortion advocates want it, rather than on the question of whether we can choose to throw away someone else’s life to make our own somewhat more comfortable. Science tells us that this is unique human life; the further we get away from that, the weaker our position becomes.
At some point, we need to give the Supreme Court a solid reason to test Roe. The 20-week ban is probably not going to suffice, although to give Kasich credit, it will save some lives while we wait for the court to address a grotesque injustice that has allowed the industrial killing of over 50 million lives since it was written. Perhaps we should learn a lesson from Solomon’s boldness.