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Monday, July 18, 2011

Ohio's "Heartbeat Bill"

This morning I spoke on our local radio show here in Cleveland about some abortion legislation that is pending or has recently been enacted by the Ohio legislature. Not surprisingly, one of the most controversial bills is called the "heartbeat bill." It purports to outlaw (criminalize) all abortions, with narrow exceptions when the life or physical health of the mother is seriously endangered, once the heartbeat of the fetus can be detected. That's as early as 6-8 weeks of pregnancy. When most women probably don't even know they're pregnant.

No one thinks this law is remotely constitutional - I'm pretty sure not even its sponsors think so. In fact, the bill itself contains language saying that, if a federal court holds the law unconstitutional, the effective date will be "tolled" until, essentially, there's reason to believe that the law may be constitutional (due to an intervening change in the applicable law).

The bill has passed the Ohio House, but its prospects in the Senate are unclear. But I have to say, I find it frankly shocking and offensive that a legislature would even come this close to passing a law that is so obviously, indisputably unconstitutional. It seems to me that this craziness only happens in the abortion realm. Are there other examples, perhaps in other areas? 

Posted by Jessie Hill on July 18, 2011 at 04:18 PM | Permalink

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Comments

For those not following this closely, you should know that the main pro-life organization, Ohio Right to Life, opposed the bill on the precise ground that it's going to be struck down, cost fees, and just re-trench Roe against their cause. It was other activists who pushed it.

Those concerns did register with some legislators, because it was opposed by some who are otherwise regular voters for most abortion restrictions. There were not enough to prevent passage, but the fact that some did it, and that the bill was stalled for awhile, shows something.

We'll see what the Senate does, but I suspect that leadership in both houses knows it's a problem, and just allowed the one House vote to let people express themselves.

Posted by: ohioan | Jul 21, 2011 9:37:41 AM

This is all very interesting. I didn't know about most of those examples of this sort of thing happening in other areas. I do think there is something offensive about states acting in a way that is so blatantly unconstitutional; on the other hand, it does seem that's the only way to test the law or see if the Supreme Court is ready to change it. I worry that states act irresponsibly in this regard, because the legislators are often happy to make the political statement that they oppose Roe while knowing all along that a federal court will strike down the law, so they will never have to face the wrath of those voters who would be negatively affected if the law were actually to take effect. The only real backstop, which in theory forces some cost-benefit analysis by legislatures, is that they will have to pay the plaintiffs' attorney fees if the law is struck down. In reality, though, the threat of attorney fees doesn't appear to deter many legislators.

Posted by: Jessie Hill | Jul 21, 2011 8:40:15 AM

I'd like to expand on Prof. Howitz's point. If a legislature can't push against precedent to gain review of that precedent, isn't that endorsing a ratchet effect? Anything struck down stays struck down, even if 9 anti-Roe justices are confirmed, because no legislature should pass an anti-Roe law?

It shouldn't matter that a law is a head-on challenge versus a smaller chipping away, if the point is that you shouldn't pass things that are clearly invalid. "Smaller" laws like waiting periods can also be clearly invalid under current precedent, but passed to challenge or move those precedents.

I suspect that many who dislike such challenges as to Roe are more open to laws that push back on campaign finance precedent, and vice versa.
S the ru

Posted by: ratchet critic | Jul 19, 2011 3:31:52 PM

that's an interesting post, hanah. and i think it raises a set of related questions about what "upholding the constitution" means; and when it is appropriate for various governmental actors to make their own constitutional judgments. when is it "independent constitutional judgment" and when is it "nullification" or something similar?

i'm not sure i have any well-formed answers, but i would say that state legislative enactments of this kind run pretty close to the nullification line. i think state legislatures have a basic constitutional duty--rooted in the supremacy clause--to follow supreme court precedents in clear cut cases. in other words i do think the fact that the Ohio legislature disagrees with the Supreme Court does become a big deal when they actually pass legislation like this. but i'm open to rebuke...

Posted by: Ian Bartrum | Jul 19, 2011 2:22:48 PM

It's only wrong if you equate "constitutional" with "what the Supreme Court thinks is constitutional." The Ohio legislature is quite sure that the bill would be held unconstitutional by the Supreme Court, but they believe it is constitutional. As government officials who are sworn to uphold the Constitution, the Ohio legislatures have to use their own best judgment. Often that will mean deferring to the Supreme Court, but it doesn't always mean deferring.

This bill has serious moral problems, but the fact that Ohio's legislature disagrees with the Supreme Court is not one of them.

Posted by: Hanah | Jul 19, 2011 11:48:05 AM

The problem with this sort of thing is that it results in actual prosecutions or other burdens on people while the matter is being litigated, including certain actors along the margins not going on a limb because who knows what will happen?

It is not merely an advisory sort of thing (say akin to the legislature, per Prof. Amar's suggestion, announcing such and such penalty is deemed not cruel and unusual by the people's representatives, to help determine the current state of opinion on the matter which is looked upon as a way to see if a law violates the 8A).

And, it is not a law along the margins -- such as some of the abortion bills that passed that many think are unconstitutional, but happily or not, there is some chance they will be upheld. Such as a "twenty week" law that might not have the right exceptions or any number of laws (such as the ultrasound ones) that seem oppressive, but is not so clearly an "undue burden" to be unconstitutional.

The line to draw here is open to some debate but laws of this sort seem more blatantly problematic than many others that would not meet constitutional scrutiny.

Posted by: Joe | Jul 19, 2011 11:41:43 AM

I think many categories of race-based measures blatantly violate precedent, and local governments still enact them, or more often, local administrative bodies set them up by executive act.

First, set-aside contracting programs that use racial categories are unconstitutional, unless they are reparative for earlier discrimination by that same jurisdiction. But many places still do it, with out-and-out quotas. Some bury the ethnicity by a layer, allowing the program to all disadvantaged business, so white men have a shot if they meet certain factors. But many places make minority-owned "automatic" qualifiers, so that's where the equal protection violation comes in.

Second, I believe that many schools' admissions criteria blatantly violate Gratz and Grutter. Many focus on Grutter's approval of diversity-based consideration of ethnicity as pasrt of a broader full-file holistic review. But less focus is placed on Gratz, which said UM's straight point system was invalid. I believe many schools still have a straight number plan, and don't document a true Grutter-based holistic review.

Beyond admissions, there are programs offered by many state schools that are minority-only scholarships, internships, and so on.

I know that these are hot-button debates as a matter of policy, but I don't see how they survive constitutionally. I think it's just institutions rejecting what they see as invalid Supreme Court decisions.

Even if these are institutions and policies that some, or most, in legal academia like, they're impossible to square with precedent. That's especially so of the contracting, where there's no diversity rationale or fuzziness in the precedent.

Posted by: cynic passing by | Jul 19, 2011 10:31:10 AM

A handful of states passed laws in the past couple of years that would require elections in various matters -- most importantly for the sponsors, for all union certifications. To the extent these laws would apply to unions covered by the National Labor Relations Act (and again, the point was that they would), the laws were obviously preempted by the NLRA. And the law of NLRA preemption is much less likely to shift than, say, jurisprudence relating to abortion or commerce clause jurisprudence relating to the health care reform law. And for that matter, conservative anti-union types might not be happy if NLRA preemption law did in fact shift to allow more state regulation, and some states would likely pass pro-union laws.

This was all a political stunt to protest provisions of the now-pretty-much-dead Employee Free Choice Act that would have required employers to recognize unions if they produced cards signed by a majority of bargaining unit members (as opposed to the current law which permits but does not require recognition in such situations).

Posted by: Joseph Slater | Jul 19, 2011 9:20:01 AM

Jessie, let me abstract away from this particular case and ask: what if a legislature strongly believes that a precedent of the Supreme Court misconstrues the Constitution and should be overruled. Is it not under any circumstances allowed to pass a law that it believes reflects the "true" meaning of the Constitution, while seeking an early shot at judicial review and pledging to abide by the courts' ultimate decision?

Posted by: Paul Horwitz | Jul 19, 2011 7:31:38 AM

The state health-care choice laws are designed with a different purpose in mind--to create a conflict with (unconstitutional) federal law and set the State up with an opportunity to itself challenge the federal law in court. It probably won't work for reasons of standing and subject matter jurisdiction, but that's the goal.

I think it would be interesting to collect not only examples, but to try to create a typography of areas and rationales for states/municipalities doing this.

Posted by: Howard Wasserman | Jul 19, 2011 1:01:12 AM

In the immigration area, clearly. States and cities enact laws which have previously been held unconstitutional.

Posted by: Jack | Jul 18, 2011 10:51:41 PM

The other obvious parallel are recent "health care" laws like Virginia's, that clearly fail under the Supremacy Clause.

Posted by: Andrew MacKie-Mason | Jul 18, 2011 8:01:19 PM

I think it happens in the free speech area. A lot of the early internet indecency regulations were pretty clearly going to fail. The same for the crush video laws that followed after Stevens.

The difference in the abortion area is a sense (hope) among legislators that the law on abortion is going to change sometime in the near future (i.e., SCOTUS will overrule Roe and Casey and there will cease to be any constitutional protection for reproductive choice) and these laws will then become constitutional. By contrast, a lot of the speech regulations are done purely as political theatre, with no expectation of the laws ever being upheld.

Posted by: Howard Wasserman | Jul 18, 2011 4:48:30 PM

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