The Ohio Supreme Court is hearing a case that could reinforce the state’s 6-week abortion ban, or “fetal heartbeat law,” making abortion in the state once again illegal once there is a detectable fetal heartbeat of the unborn human individual, according to the law. This comes a little over a month before the General Election, when Ohioans are set to vote on whether abortion will be constitutionally protected.

The abortion ban was first signed by Ohio Gov. Mike DeWine in 2019, but abortion providers filed an injunction soon after that, preventing the law from going into effect on the basis that it violated the constitutional rights that Roe v. Wade upheld. When Roe fell in June 2022, Atty. General Dave Yost asked the court to lift the injunction since the state now had newfound power to regulate abortion – and it did.

This ban was enforced for about three months until September 2022 when a restraining order came into play. Abortion is now allowed until 22 weeks, impending the state overrides the lower courts.

“All the women of childbearing age in Ohio are at the mercy of four conservative justices on the state Supreme Court,” said Sen. Kent Smith.

Why is six weeks problematic?

Not everyone knows they’re pregnant at six weeks. A study at the University of California-San Francisco found that 1 in 3 people find out they’re pregnant at six weeks or after, and two in three between the ages of 15-19 finding out after six weeks.

In Ohio, 25% of a sample of abortion patients didn’t even know they were pregnant before six weeks, and about 80% got an abortion after six weeks. This group also had lower income and low education attainment, then those who found out sooner.

It leaves more chances for a pregnant person to be denied abortion only because they realized too late. Experts also say the phrasing of this policy is inaccurate.

According to Ohio Policy Evaluation Network (OPEN), the term “fetal heartbeat” is not a legitimate term. For one, at the 6 week gestation point an organism is considered an embryo, and not yet at the fetal stage. Secondly, an embryo at 6 weeks only measures around one or two millimeters and does not have a developed heart or cardiovascular system, so it cannot have a heartbeat. The activity an ultrasound picks up could be throbbing of tissue in the embryo, but it is not a formed organ, according to the Guardian.

Research also suggests that the anti-abortion laws present in Ohio are not representative of the opinions of those directly affected by it – women and birthing people of reproductive age in the state. According to research conducted by Dr. Mikaela Smith and her team, 59% agreed that safe and effective abortion should be available to people in their community. 69% agreed that a woman should not fear being arrested or going to jail for having an abortion.

However 52% said their view on abortion “depends.”

Traveling for care impacts access in the Midwest

Because Ohio’s current law doesn’t hold exceptions for abortion, senator Smith explained the negative impact strict abortion bans have, pointing to the case of a 10-year-old Ohioan girl forced to travel to Indiana to terminate a pregnancy that resulted from rape.

“I mean, we would be back to that type of scenario where parents would have to patients would have to travel for reproductive healthcare, regardless of age, law enforcement would be investigating miscarriages as potential murderers. Doctors could be getting prosecuted,” senator Smith said.

When the six-week ban was enacted, most Ohioans seeking abortion care traveled to Michigan, Illinois or Pennsylvania, according to Dr. Mikaela Smith, Research Scientist at OPEN.

Dr. Smith points out that sometimes people travel to other states even in areas where abortion is legal just because it’s geographically closer than the closest clinic in their state, citing eastern Ohio, which borders Pennsylvania as an example.

“So there’s some natural interstate travel for abortion care… but it’s when a whole state is not able to provide it and then you have all of these people traveling out of state, and then [that’s] also putting additional pressure on the states in which abortion is still available,” Dr. Smith said.

Illinois is reporting 1,140 more abortions per month post-Dobbs, as many other Midwestern states enacted strict abortion bans.

“They’re having to drive through multiple states sometimes to get care or they might have to even drive past clinics that are technically providing care, but because of wait times because of increased patient flow,” said Dr. Smith.

An estimated 1,500 people were not able to access abortions in the state while the six-week ban was enforced, forcing the decision between traveling out of state, self-managing an abortion, or carrying the pregnancy to term. Self-managed abortions which result in emergency healthcare scenarios, could be subject to criminalization, and disproportionately impact BIPOC communities, especially Black pregnant people.

If the court decides to throw away this case Preterm-Cleveland v. David Yost, the 6-week ban could be reenforced before Ohioans have the opportunity to vote on Issue 1 in November.

The ticket on Ohio’s 2023 ballot allows citizens to determine the future of reproductive access in the state, potentially establishing the right to one’s own reproductive medical treatment, including abortion.