Ohio abortion bills pose Kasich's first test in Trump era

COLUMBUS - In passing the so-called “heartbeat bill” – the country’s most-restrictive abortion legislation – Ohio Republicans are sending John Kasich a test.

The Ohio governor based his unsuccessful 2016 Republican presidential campaign on principle over party, rejecting extremism and, more than that, rejecting the policies and rhetoric of Donald Trump.

Trump won Ohio and the election.While he didn't campaign on the "heartbeat bill," he gained the support of evangelicals based primarily on their hope he would appoint anti-abortion and pro-church justices.

So last week, Ohio Republicans considered Trump’s upcoming presidency and made a choice. After years of avoiding it, they would pass the heartbeat bill, which would outlaw abortions after the detection of a fetal heartbeat. It’s a new era, they said.

What they did not say, at least publicly: If Kasich wants to stand on principle, to keep standing up to Trumpism or to the more conservative parts of the Republican Party, that’s up to him. He has a line-item veto option on the bill. It’s his move this time.

The choice facing the Ohio governor – who opposes abortion but has fretted publicly about the heartbeat bill’s unconstitutionality – serves as a case study. How will he and other moderate Republicans approach the Trump era?

Will he veto the heartbeat bill?

‘New president, new Supreme Court’

For years, Kasich and some of the state’s leading Republican lawmakers had withstood calls to pass the heartbeat bill, which would prohibit abortions after about six weeks’ gestation.

Their reasoning, which they shared with Ohio Right to Life: The bill is unconstitutional under the U.S. Supreme Court’s current standard guaranteeing abortion rights until a fetus reaches viability, generally accepted as 24 weeks. Such a drastic change would not survive the Supreme Court, and sending it to the court possibly would endanger other abortion restrictions.

But Trump may get to make multiple Supreme Court appointments during his presidency, which conservatives hope could swing the court in favor of limiting abortion rights.

“New president, new Supreme Court justice appointees change the dynamic,” said Senate President Keith Faber, R-Celina, justifying the change of heart that led to the bill’s unprecedented passage in the Ohio Senate.

In other words, in the era of Trump, why not try it?

Something else was at play in the decision: politics.

For example, Faber is leaving the Ohio Senate for the Ohio House in January, but he has further political ambitions, perhaps running for statewide office. Failing to pass the heartbeat bill would surely lead to campaign ads or picket signs accusing him and other Republicans of “letting babies die.”

The advocates of the heartbeat bill already have run TV ads against Faber in his district. They have picketed outside his home. And on the Clearcreek Township street where Senate Health Committee Chairwoman Shannon Jones lives. And outside the private Columbus-area residence of Kasich himself.

Janet Porter, a northeast Ohio activist who has led the effort to pass the bill, has also recruited Republicans to run against lawmakers who she thought were stopping the bill’s progress.

This year, she couldn’t find anyone to run against Senate President Pro Tempore Larry Obhof, R-Medina. So she did it herself. After losing, she sent him a card. “If you don’t pass the heartbeat bill, everyone will know I was right in the primary.”

One, two or three justices

To Porter, the year of Trump's election, is exactly the right time to pass the heartbeat bill.

Three Supreme Court justices who would uphold abortion rights, Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer, are 78 or older. After Trump fills the current vacancy on the court, conservatives reason, he needs only one more appointment from a justice’s retirement or death to swing the balance of the court against abortion.

Porter reasons it would take several years – perhaps just the right amount of time – for a challenge of the heartbeat bill to work through the appeal process and arrive at the Supreme Court.

“It’s going to be a brand new court,” Porter said. “That’s the whole point of electing him,” she said of Trump.

Maybe she’s right, and things have changed, and the heartbeat bill has a chance of being ruled constitutional this time. (Federal courts have struck down similar measures in North Dakota and Arkansas.)

Maybe Kasich will agree with her and sign the bill. (It should be noted: The bill lacks exceptions for incest and rape, no doubt further jeopardizing its chances of getting Kasich’s OK.)

Ohio Right to Life disagrees with Porter’s approach. The group believes in whittling away at Roe vs. Wade by first seeking to limit abortions to 20 weeks’ gestation, when, the group says, a fetus can feel pain. That standard, which is in effect in several states, is also headed to Kasich’s desk in a separate bill.

Nearly 150 of Ohio's 21,000 abortions in 2015 came after 20 weeks' gestation. The state doesn't keep data on how many abortions would be eliminated by the heartbeat bill, but 10,066 of Ohio's 2015 abortions were performed at nine weeks' gestation or later.

‘The man who killed the heartbeat bill’?

Kasich’s spokeswoman has given no indication of how he plans to act on either bill. His vocal opposition to the heartbeat bill and his signature on 17 Ohio Right to Life-backed measures give the strongest hint at his inclinations, his principles, regarding the anti-abortion bills.

“If past performance is any indication of future behavior, John Kasich will sign only the 20-week ban, because he believes in the incremental approach to the pro-life issue,” said Mike Gonidakis, president of Ohio Right to Life. “Can you pass a law that says the speed limit is 70 but it’s also 65? These two bills are in conflict with each other.”

For Kasich, standing by his past statement on the heartbeat bill would come at a cost.

“I don’t think he wants to be known as the man who killed the heartbeat bill and the 20,000 babies it would have protected just this year,” said Porter, a one-time Kasich ally who has attacked him for his position on the bill.

She’d do it again, too. Ask her about her controversial tactics and she simply says: “They worked.” In publicly excoriating Kasich, Porter has joined right-wing conservatives frustrated with the governor’s position on everything from labor laws to Medicaid expansion

“This is the deciding moment,” Porter said of the two-term governor. “By signing this bill, he can build a bridge back to the people who once supported him and will again. This is an enormous first step.”

In some ways, signing the heartbeat bill would mean moderate, principled Kasich finally had yielded to the moment, and the momentum. Trump’s election was a sign of something else, said state Rep. Candice Keller.

“There seems to be a quiet rousing of people that are like, ‘I’m not going to be quiet any longer. I do care about life, and I’m not going to just let these things continue to be stagnant,’ ” said Keller, R-Middletown, who was appointed by her fellow House Republicans less than four weeks ago to fill a vacant seat and, she says, to help pass legislation such as the heartbeat bill.

Kasich could take a third option. Unless he vetoes the bill, it will become law even without his signature. So he could do nothing.

The new law would not take effect for 90 days, and the American Civil Liberties Union has vowed to file suit to challenge its constitutionality, likely before that wait period ends.

Federal courts likely would prevent the bill from taking effect during the court battle.

But to David Pepper, chairman of the Ohio Democratic Party, even allowing the heartbeat bill to coast into law falls short of the stand Kasich took during the GOP primary and afterward, when he declined to back Trump. (For the record, Pepper hopes Kasich vetoes both abortion bills.)

“Even though Trump got elected, it doesn’t just mean you get to violate the constitution,” Pepper said, referencing Faber’s remarks about the heartbeat bill. “John Kasich knows that. I believe he’ll be consistent with his principled stand and veto it.”