Governor John Kasich speaks to guests at a rally on April 7, 2016 in New York City.
Abortion bill awaits Gov. Kasich's signature
01:13 - Source: CNN

Editor’s Note: Rachel Sklar is a New York-based writer and co-founder of Change the Ratio, which aims to increase visibility and opportunity for women in tech and new media, and, a network and media platform for women. The views expressed are her own.

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Rachel Sklar: Ohio bill should worry everyone -- women, men, Republican, Democrat

Brazen disregard for the Constitution threatens to become a trend under Trump, she writes

CNN  — 

Ohio just passed legislation that would effectively outlaw abortion – even though it’s an established, constitutionally-protected right. Those two things seem incompatible. What is going on here?

Well, misogyny is going on here. And the unmistakable attempt to control women’s bodies. And their economic independence. And their lives. But we’ll get to that.

Rachel Sklar

This law is nicknamed a “Heartbeat Law” because it states that abortion is prohibited as soon as a heartbeat can be detected in utero. That’s typically at around 6 weeks, depending on the woman in question and/or available technology. That means this bill, if law, would set a different standard for each woman, according to the quirks of her biology.

But “Completely Unconstitutional Cynical Brazen Workaround Law” clearly didn’t have the same ring, so off the Ohio legislature went enacting a law that flew in the face of an explicit, established and affirmed constitutional right: In Roe v. Wade (1973) the Supreme Court ruled in favor of the privacy right of a woman to reproductive self-determination, and in Planned Parenthood v. Casey (1992) the court determined that abortion was legal and constitutionally protected until “fetal viability,” that is to say, the point at which a fetus was able to survive outside the womb. This is usually at around 24 weeks, if that (a normal gestation period in pregnancy is 40 weeks). That’s quite a bit later than 6 weeks!

Here’s something else about 6 weeks: At that point, many women don’t even know they are pregnant. Imagine you’re a woman. (Male Ohio legislators, I know you’ve never done that! But humor me.) You’re a woman who is just going about her daily life (busily, of course, because we’re always busy) when one day she thinks, hmmm, I probably should have gotten my period by now. Maybe she dismisses it, because she took up running or changed her sleep schedule or has a new female office mate and their schedules are probably syncing or for a multitude of random other reasons. Periods be wacky, right? If you are still pretending you’re a woman, then you say, “Right!” Because periods be wacky.

And as a result, many, many women do not even know they are pregnant at 6 weeks – approximately the point at which, according to the bill now on (vehemently anti-abortion) Gov. John Kasich’s desk, women would now be banned from having an abortion.

Revolting, reprehensible, heartless, misogynistic, patriarchal and downright evil, yes – but let’s get back to why it’s also totally and outrageously unconstitutional.

There has been some debate about when exactly “fetal viability” occurs, but there is no debate about fetal viability occurring at 6 weeks. Why? Because until at least 10 weeks, there is no fetus. At this point, we are dealing with an embryo (which is just a hop, skip and a jump from the bundle of cells known as a blastocyst, formerly the morula once known as a zygote. Yay biology!).

That’s why things in the very early stages of development but which are by no means even recognizable as whatever the finished thing might be are called “embryonic.” Still with me, Ohio legislators? Cool.

One word: Trump

So: At 6 weeks, there is zero chance of fetal viability – for a variety of reasons, including the lack of an actual fetus! As a result, at 6 weeks, there is zero chance of any ban on abortion being constitutional.

So why is Ohio suddenly – literally suddenly, as in, shoehorned at the last minute into an unrelated bill – passing a flagrantly unconstitutional and unbelievably draconian abortion ban?

One word: Trump. (Well also there are a few other words, but they are unprintable.)

Trump has promised to nominate a pro-life Supreme Court judge to fill departed Justice Antonin Scalia’s (eternally and unfairly) vacant seat and any other vacancies that arise, and he has declared his wish – regardless of how feasible he thinks it is – to overturn Roe and have the abortion question revert to the states. (Note that in that case, abortion would be instantly criminalized in a number of states, including New York which still has a pre-Roe 1970 law on the books criminalizing abortion.)

Based purely on case law, Roe should be safe – it is settled law (which Chief Justice John Roberts has seemed loath to unsettle) and indeed reproductive rights got a major boost just this past June with Whole Woman’s Health v. Hellerstedt, which smacked down a Texas law that severely restricting abortion providers on arbitrary measures, and which invalidated similar laws in other states. But as conservative groups well know, it only takes one case to get to the Supreme Court to change all that.

And even if it turns out to take more than one justice to threaten Roe, if history is any guide, Trump’s term will likely bring at least one more additional Supreme Court vacancy (shudder). He has made it very clear that hewing to established case law is not a top priority here (sad face, Merrick Garland).

Is this particular case a slam dunk to overturn Roe and four decades of settled law? Definitely not before November 8, but, well, in Trump’s America, who knows? Donald Trump is now the Wild Card-in-Chief - and as a result, formerly unwinnable propositions now look promising to the GOP.

“New president, new Supreme Court justice appointees, change the dynamic,” said state Senate President Keith Faber, adding that he thought the law had “a better chance than it did before” of surviving a constitutional challenge.

Trump has already made it clear that the usual rules don’t apply. This Ohio law fits neatly in a row alongside numerous blatantly unconstitutional trial balloons floated by Team Trump – Trump’s tweeted suggestion that flag-burners ought to be stripped of citizenship and put in jail; Trump’s proposed Muslim ban which would contravene the First Amendment guarantee of freedom of religion; and of course, the very real possibility that Trump could violate the Constitution the moment he is sworn into office if he fails to divest himself of his business interests, which would violate the Emoluments Clause. (“Emoluments” is such a delicious-sounding word, like a delicate dessert one might enjoy after frog-legs soup. Perhaps you’ll learn more about it on the “Celebrity Apprentice”!)

‘See the trend lines here’

So when Ohio legislators rammed into law something that is so stunningly and incontrovertibly unconstitutional, it seems clear that they were markedly emboldened by the brazenness at the top.

This should worry us all. It should worry all women (including affluent women in blue states who aren’t used to worrying about reproductive health care), because brazenness is not characterized by moderation. It should worry men, especially those with families that rely on a mother’s economic independence and self-determination (say it with me: the single biggest factor in a woman’s economic life is when and whether she decides to have children. Also, women who already have children constitute the largest group of women seeking abortion). It should worry anyone who respects the rule of law.

I know, I know, we have a lot to worry about these days! (Hi Russia! Hi China! Hi Taiwan!) But women’s rights are a real canary in the coal mine, and in case you haven’t noticed there aren’t an awful lot of protectors in the Trump Cabinet (especially not Mike Pence, who has said he wants to see Roe on the “ash heap of history”).

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    See the trend lines here: A brazen Trump administration taking to the Constitution like a wrecking ball - and promising to back it up with at minimum one new court pick! - is, as the kids say, emboldening AF. And that danger could carry forward into voting rights (an area where the GOP has already been pretty brazen), gay rights, gun rights, climate issues and a whole host of other critical concerns.

    Ohio’s new law is an affront to women, an affront to families, an affront to the rule of law, and an affront to the Constitution. But if you’re thinking it doesn’t apply to you, do not be fooled. It is not just about women. And it is not just about Ohio. It’s about all of us.