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Republican federal judges have struck down similar laws to Ohio's proposed "heartbeat bill."

(Robert Higgs/cleveland.com)

CLEVELAND, Ohio -- Measures similar to Ohio's "heartbeat bill," tacked on to unrelated legislation and hurried through both houses of the legislature Tuesday, were struck down by federal judges in other states as problematic and antithetical to well-established legal precedent pertaining to abortion.

The judges who ruled against Arkansas and North Dakota's laws were all appointed by Republicans, and the conservative-leaning U.S. Supreme Court also decided to leave the lower court's rulings in place and reinforce existing precedent.

Ohio Senate President Keith Faber said Tuesday that Ohio's laws may be able to survive in the courts due to the election of Republican Donald Trump and the fact that he will be able to appoint at least one conservative justice. The president-elect has said he would place an anti-abortion justice in the seat vacated by Justice Antonin Scalia's death in February.

U.S. Senate Republicans made the unprecedented move of refusing for nearly a year to hold conformation hearings for outgoing President Barack Obama's nominee, D.C. Circuit Judge Merrick Garland.

Republican state senators in Ohio inserted the "heartbeat" language into a bill revising state child abuse reporting laws. The language bans abortions once a fetal heartbeat is detected, which could be as early as six weeks after conception, before a woman might find out she's pregnant.

The Ohio House, along party lines, approved the new language late Tuesday. Should Gov. John Kasich sign the bill, pro-choice activists are guaranteed to file a challenge in federal court.

Judges in the Arkansas and North Dakota cases, which addressed laws that outlawed abortion weeks after conception, deemed the laws unconstitutional because they go against the "viability standard" the Supreme Court used in seminal abortion cases Roe v. Wade and Planned Parenthood v. Casey. The standard says abortions cannot be banned before a fetus can live outside the mother's womb. Doctors say that usually can't occur before a fetus is 24 weeks old.

The proposed Ohio bill is similar to North Dakota's overturned law. Arkansas' overturned law banned abortions after 12 weeks.

Legal analysts say that a conservative appointment to the Supreme Court does not guarantee that abortion will be further restricted or outlawed altogether. And Faber's arguments falter a bit because Scalia was widely viewed as pro-life, so anti-abortion advocates may have to wait for another justice to vacate his or her seat before the court's view on abortion changes.

"I think they have a longer game in mind," B. Jessie Hill, an associate dean at Case Western Reserve University's school of law and an expert on abortion law, said of Ohio's Republican lawmakers. She added that "even in the Supreme Court, I don't think there five votes to overturn Roe."

So in advance of a possible court challenge to Ohio's "heartbeat bill," here are some of the things federal judges said of the Arkansas and North Dakota laws:

Arkansas

Arkansas lawmakers passed their bill in March 2013. Advocates sued to prevent the law from going into effect, and Arkansas federal Judge Susan Webber Wright blocked the law in May of that year.

Wright -- appointed by President George H.W. Bush -- struck down major portions of the law in 2014. Referencing the declaration of a gynecologist and the "viability standard," she wrote:

"The State presents no evidence that a fetus can live outside the mother's womb at twelve weeks, and the State does not dispute Dr. (Janet) Cathey's testimony that 'a fetus at [twelve] weeks is not and cannot be viable' and that viability generally is not possible until at least twenty-four weeks."

The 8th U.S. Circuit Court of Appeals in St. Louis affirmed Wright's ruling in 2015. A three-judge panel, all Republican appointees, agreed with the federal judge but wrote that the "viability standard" might need to be revisited.

North Dakota

Lawmakers in North Dakota passed their "heartbeat" bill the same month as Arkansas. North Dakota's bill was more stringent, saying abortion was illegal when a heartbeat was detected, which could be as early as six weeks.

North Dakota federal Judge Daniel Hovland -- a George W. Bush appointee -- wrote two opinions with harsher language than Wright's. In a July 2013 order to block North Dakota's law, he wrote:

"A woman's constitutional right to terminate a pregnancy before viability has been recognized by the United States Supreme Court for forty years. The undersigned is bound to follow that precedent and uphold the law. Because the United States Supreme Court has clearly determined the dispositive issue presented in this dispute, this Court is not free to impose its own view of the law."

He was also critical of how North Dakota supported its argument, and saying the state is needlessly racking up legal bills for a pointless fight.

"The State of North Dakota has presented no evidence to justify the passage of this troubling law. The State has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded to all women."

In 2015, the same three-judge panel from the 8th Circuit appellate court that ruled on Arkansas' law heard North Dakota's appeal. It also held that the state's law is unconstitutional.

Because there is no genuine dispute that (North Dakota's law) generally prohibits abortions before viability -- as the Supreme Court has defined that concept -- and because we are bound by Supreme Court precedent holding that states may not prohibit pre-viability abortions, we must affirm the district court's grant of summary judgment to the plaintiffs.

Like they did with the Arkansas case, though, the appeals court said the "viability standard" might need to be revisited.