Source: Lauren Huddleston, JD, NEA Consulting (OAFP’s Incoming Lobbyist)
On June 24, the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that the Constitution does not prohibit the states from regulating or prohibiting abortion, overruling the precedents in Roe v. Wade and Planned Parenthood v. Casey. In light of the Court’s decision, the availability of abortion procedures in Ohio has already changed.
The Heartbeat Bill (Substitute Senate Bill 23 (SB 23)) was signed into law in April of 2019 but implementation of the law was blocked by a federal judge until June 24. Attorney General Dave Yost filed a motion in the U.S. District Court to dissolve the injunction against the Heartbeat Bill immediately following the release of the Supreme Court decision. Judge Michael Barrett subsequently issued an order dissolving the injunction that evening. Governor Mike DeWine then signed an executive order putting Rule 3701-47-07 into immediate effect, thus implementing the law. Now the Heartbeat Bill has become the law of the land. While provisions of current Ohio law that prohibit abortions after the fetus reaches the probable post-fertilization age of 20 weeks or viability remain in effect, the implementation and enforcement of the Heartbeat Bill prevents these laws from having any practical impact by prohibiting abortions at an earlier stage of the pregnancy.
Thirteen (13) other states enacted so called “trigger” legislation to prohibit abortion immediately upon the trigger of the Supreme Court overturning Roe precedent. Kentucky is among these, and no waiting period was required after the Court’s June 24 ruling for the law to take effect. As a result, there may be individuals crossing state lines to seek an abortion procedure that is otherwise outlawed in their state of residence.
There are several bills pending before the Ohio General Assembly that would prohibit or limit abortion procedures. As it currently stands, the legislature does not have any scheduled session days until September. Senate President Matt Huffman (R-Lima, OH) told reporters that an Ohio abortion ban bill is unlikely to pass before Labor Day and he is unsure it will done before Election Day in November.
The Heartbeat Bill Provisions
SB23 of the 133rd General sponsored by Senator Kristina Roegner (R-Hudson, OH) and now in effect in Ohio, makes it illegal for a person to knowingly and purposefully perform or induce and abortion once a fetal heartbeat has been detected and provides that any person found to be violating this law is guilty of a 5th degree felony. It is also a felony to perform or induce an abortion before determining if there is a detectable fetal heartbeat.
There are two circumstances in which the prohibition on abortion after a fetal heartbeat is detected does not apply or is not violated: to save the life of or prevent serious risk of impairment to the mother and when no fetal heartbeat is detected.
The law exempts from the prohibition a physician who performs a medical procedure intended to prevent the death or serious risk of substantial and irreversible impairment of major bodily function of the pregnant woman. “[S]erious risk of the substantial and irreversible impairment of a major bodily function” is defined as any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function. These conditions include pre-eclampsia, inevitable abortion, and premature rupture of the membranes. It may also include diabetes and multiple sclerosis. It does not include a condition related to the woman’s mental health. A physician in this circumstance must declare in writing that the medical procedure is necessary, to the best of that physician’s reasonable medical judgment, to prevent the death or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. The physician must specify the medical condition that the procedure will purportedly address and the medical rationale for the conclusion that the procedure is necessary. The physician must place the written documentation in the pregnant woman’s medical records and maintain a copy of it in the physician’s own records for at least seven years.
A person is also not in violation of prohibition if they perform an examination for the presence of a fetal heartbeat in accordance with the person’s good faith understanding of standard medical practice and using a detection method provided by rule adopted by the Director of Health and the method does not reveal a fetal heartbeat.
The prohibition on abortion before determining the presence of a fetal heartbeat is not violated if a medical emergency prevents the physician from determining the presence of a fetal heartbeat.
“Medical emergency” is defined as a condition that in the physician’s good faith medical judgment, based upon the facts known to the physician at that time, so complicates the woman’s pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create. If this situation occurs, the physician must note the belief that the medical emergency necessitated the abortion and the medical condition that caused the emergency in the pregnant woman’s medical records. The physician also must maintain this record for at least seven years in the physician’s own records.
The provisions of the Heartbeat Bill also require that if a the person who intends to perform or induce an abortion detects a fetal heartbeat, the pregnant woman must sign a form acknowledging that she has received information from the person intending to perform or induce the abortion that the unborn human individual that the woman is carrying has a fetal heartbeat and that she is aware of the statistical probability of bringing the unborn human individual to term. The bill also requires that the individual performing the procedure cannot do so without at least 24 hours elapsing after meeting the acknowledgement requirement. In addition to the acknowledgement requirement, the person performing the procedure must also must meet requirements in continuing law that the person notify the pregnant woman of the existence of a fetal heartbeat and the statistical probability of the unborn human individual being brought to term under the same 24-hour constraint.
- A determination of whether a fetal heartbeat exists, test results, date and time of test, test method used, and gestational age
- Written notes regarding any medical emergency that prevented the determination of a fetal heartbeat before performing an abortion
- Written documentation that a medical procedure was necessary to prevent the death or serious risk of impairment of a major bodily function, after a fetal heartbeat has been detected
- Written documentation regarding whether maternal health was a reason for an abortion.
The State Medical Board of Ohio (SMBO) has the authority to take disciplinary action, including revoking or suspending an individual’s certificate to practice or reprimanding or placing a certificate holder on probation, for failure to comply with the Bill’s requirements or maintain the following medical records or documents for a woman regarding an abortion procedure. The SMBO is also allowed to assess a forfeiture up $20,000 for each separate violation or failure of the person to comply with the act’s requirements. This is independent of any criminal penalties imposed under the law.
The act expands continuing law permitting a woman who received an abortion to bring a wrongful death action for her unborn child. The act permits an action if the abortion was knowingly and purposely performed or induced (1) with the specific intent of causing or abetting the termination of the unborn human individual whose fetal heartbeat has been detected, or (2) without the woman’s signature on an acknowledgment that the woman received the information (a) that there was a fetal heart beat and (b) about the statistical probability of the unborn human individual with a fetal heartbeat being brought to term.
The Bill directed ODH to adopt administrative rules specifying the appropriate methods of performing an examination for the purpose of determining the presence of a fetal heart beat based on standard medical practice. Gov. DeWine suspended the normal rule making procedures for ODH to allow it to immediately adopt rules to put the bill into effect over the weekend. The rule language requires that the method for determining the presence of a fetal heartbeat is to be consistent with the person’s good faith understanding of standard medical practice using properly maintained and functioning ultrasound equipment. The rule also requires that the person who intends to perform or induce the abortion on the pregnant woman use real-time ultrasound equipment with a transducer of appropriate frequency. The person who determines the presence or absence of the heartbeat must record the estimated gestational age of the unborn individual, the method used to test for the heartbeat, and the date, time, and results of the test. This information must be included on the confidential abortion report filed with ODH.
SB23 provisions apply only to intrauterine pregnancy, defined in the law as a pregnancy in which the fetus is attached to the placenta within the uterus of the pregnant woman.
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