A map of the United States in black, except Michigan is highlighted in purple and Ohio in red.

Access Denied

The Petty Rage of a Lame-Duck Anti-Abortion Legislator

There might have been a blue wave, but Ohio and Michigan GOP lawmakers are doing all that they can to obstruct abortion access before the close of the new year.

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All in all, the 2018 midterm elections turned out to be surprisingly positive when it came to protecting abortion rights. While the U.S. Senate managed to expand its Republican majority a few seats, they lost their grip on the House, making it nearly impossible for abortion restrictions to pass at a federal level. Meanwhile, pro-choice governors were elected across the country and very soon we could see a number of state-level bans and roadblocks reversed or removed.

Which is why it’s little wonder abortion opponents are acting so undeniably petty as they finish out this year’s legislative session.

Lame-duck sessions have always had a bit of rogue mentality to them. With elections out of the way, lawmakers no longer feel fettered by their campaigns or beholden to voters—they’ve either won their races and are comfortable enough to vote how they want, or they’ve lost and are ready to leave the political arena in a blaze of glory. Either way, this is the point in the cycle where they are most likely to throw caution to the wind and either vote their true conscience or enact some cold revenge.

In Ohio, the Republican legislature appears to be motivated to show its pure power. It has been almost eight years since Ohio introduced its original “heartbeat ban”—a first in the nation law that would ban abortion from the point in which a heartbeat is detected (possibly as early as 22 days after conception, but usually detectable by six weeks after the last menstrual period). Since then, the bill has been introduced and stuck in committee, introduced and refused a vote in the state Senate, even introduced and passed and banned by the Republican governor of Ohio, John Kasich himself.

But the Ohio heartbeat ban is like the living embodiment of legislative whack-a-mole: No matter how many times it is bashed back into its hole, it still pops up again. Arkansas, Iowa, and North Dakota have all passed and signed into law similar bills to Ohio’s—and each one of them has seen their laws blocked as blatantly unconstitutional—and yet Ohio has pushed its “little bill that could” back onto the floor again, using the 2018 lame-duck session to push it all the way over the hill.

And this time, they really do think it can.

To be clear, there was really no inherent reason that this bill needed to be included in the lame-duck term. Unlike other states, Ohio managed not only to keep their Republicans in power, they managed to expand their majorities in both state chambers. Ohio Democrats suffered a heartbreaking four-point loss in the governor’s race, meaning that the self-proclaimed “moderate Republican” Kasich (who was anything but) will be replaced this January by the even more extremely far-right Mike DeWine. In fact, one of the promises that DeWine made during his campaign was that if the heartbeat ban were reintroduced and passed the legislature, he would enthusiastically sign it into law. Kasich, meanwhile, has pledged a second veto.

But having the bill become law in 2018 versus 2019 does accelerate the schedule when it comes to a court challenge—and this was always about challenging Roe v. Wade. If the legislature actually wanted to reduce the number of abortions, it would be voting on a D&E ban, which would make abortion mostly impossible to obtain past the first trimester and which federal courts are still deliberating their constitutionality. Ohio Right to Life, which backs a D&E ban, remains opposed to the heartbeat ban, just as it has for nearly a decade as the bill repeatedly resurfaced.

But the Ohio lawmakers are banking on the fact that they might have a circuit court willing to uphold the law—even though no other court has done that before. If they finally do, they could do the unthinkable and present a court circuit split that would have to be resolved by the Supreme Court. And with Justice Brett Kavanaugh finally on the bench and still smarting from his contentious hearings (which he blamed emphatically on progressives and especially abortion-rights groups), conservative Ohioans think the timing has never been better.

Forcing the ban through the legislature a few months earlier though doesn’t really impact the long-term outlook, however. We are basically watching the state posturing as it demonstrates that, unlike the rest of the country, it was mostly untouched by the 2018 blue wave. But they aren’t the only ones lame-ducking away abortion rights. In a move that looks suspiciously like sour grapes after losing party control over the executive branch and much of the legislature, Michigan Republicans are using their last month in office to solidify the anti-abortion gains they made over their last eight years of political dominance.

Besides a wide-sweeping bill that would limit the power of the executive branch in the state (a bill coincidentally being introduced just now that the governor, secretary of state and attorney general’s seats will be held by Democrats), the GOP-controlled legislature also decided to propose a bill that expands the state’s current ban on telemed abortion (whereby a patient can consult with a doctor remotely rather than in person to obtain an abortion, a boon for those in areas that are hours away from a clinic) and make it permanent. Since 2012, Michigan required that a physician must examine in person any patient wanting a medication abortion, and be in the room when the drugs are given to the patient. That restriction should have expired on December 31, 2018, but a bill to make the rules permanent already passed the Republican majority in the state Senate and will next head to the House.

Democratic governor-elect Gretchen Whitmer ran on a campaign promise to expand abortion access in Michigan, from removing the lingering pre-Roe “zombie” legislation that defines abortion as a crime to removing a requirement that people pay additional payments to their insurance companies in order to have abortion covered on their plans. The Michigan Republicans’ last-minute bill is no doubt an attempt to throw even more roadblocks into her path.

Of course, like Ohio, it most likely just accelerated a process that would have happened down the road eventually, too. After all, this is the Michigan GOP, a group that in 2012 reprimanded a Democratic female legislator for having the gall to say “vagina” on the House floor when she was arguing against abortion bans. Apparently the GOP can legislate down there, but actually using anatomically correct terms is just uncouth. Odds are, the “temporary” restrictions were always meant to be approved permanently after the 2018 elections were concluded and Republicans wouldn’t have to worry about extremist abortion bills hurting their chances at holding the executive branch once their current governor term-limited out. Little did they consider that it was these restrictive bills that helped them lose the governor’s mansion in the first place.

One place where Republicans are surprisingly avoiding last-minute, lame-duck theatrics, however, is in Congress—shocking, since the GOP will lose their far-right stranglehold there in just a few weeks. National abortion opponents urged Congressional Republicans to use this one last shot in the majority to pass a bill to finally pull all federal funding from Planned Parenthood, or force a government shut down if Democrats balk.

According to Politico, House Republicans said no, a response that has infuriated national movement leaders. “They had two years to defund Planned Parenthood, and they failed,” Students for Life president Kristan Hawkins told Politico. “It’s a huge frustration. We worked so hard to elect supposedly these pro-life Republican officials, and we expected results.”

Lame-duck sessions, on both state and federal levels, are often this kind of grab bag of last-minute grandstanding and planting minefields for the next class of lawmakers. For Congress, the results of the 2018 midterms were enough to convince them to slow their roll on their extremist anti-abortion agenda, regardless of how angry it makes their backers in the religious right. It’s a shame that Ohio and Michigan didn’t learn that lesson, too.

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