Ohio bill would ban abortion without rape exemption

COLUMBUS, Ohio — A proposed law would completely criminalize abortion without exemptions for rape and incest. The bill states it would make an exemption for saving the life of the pregnant person, but that was debated at the Statehouse on Wednesday.

The Human Life Protection Act, House Bill 598, is a trigger ban. If this bill passes the Legislature and Gov. Mike DeWine signs it, it would only come into effect if the Supreme Court of the United States (SCOTUS) "wholly or partially upholds a state’s authority to prohibit abortion." For this, the bill would require either an issuance of a U.S. Supreme Court opinion or an adoption of an amendment to the U.S. Constitution.

Roe v. Wade was the 1973 landmark decision in which the Supreme Court ruled that the constitution protects a pregnant woman's liberty to choose to have an abortion. The Supreme Court is set to hear Dobbs v. Jackson Women's Health Organization — which is Mississippi's 15-week abortion ban.

If the Supreme Court overturns Roe v. Wade by upholding Dobbs v. Jackson Women's Health Organization, then HB 598 would immediately begin.

The bill's sponsor Rep. Jean Schmidt, a Republican from Loveland, gave her sponsor testimony and answered questions for an hour.

The bill

• Prohibits a person from purposely causing an abortion by using a "substance" or an "instrument" or other means.
• Makes criminal abortion a felony in the fourth degree.
• Prohibits any person from making, selling or advertising tools to cause an abortion.
• Makes "promoting" abortion a first-degree misdemeanor.
• Creates the crime of abortion manslaughter, which is when a person takes the life of a child born from an attempted abortion who is alive when removed from the pregnant person's uterus.
• Makes abortion manslaughter a felony of the first degree.

The penalties

• Minimum of four to seven years and a maximum of 25 years of imprisonment and a fine of up to $10,000 for abortion manslaughter.
• Minimum of one-half to two years of imprisonment and a fine of up to $2,500 for criminal abortion.

However, the bill does grant immunity from prosecution for abortion manslaughter, criminal abortion or promoting abortion to the person who attempted an abortion or succeeded in an abortion. This individual would also be able to sue for wrongful death for violation of crimes of abortion manslaughter, criminal abortion or promoting abortion.

The bill also allows for an affirmative defense to a criminal abortion charge, but only if the physician performed or induced the abortion, or attempted to do so, under the determination that it was necessary to prevent the individual’s death or a serious risk to the pregnant individual.

This would be an "exemption," according to Schmidt. In the case of a medical emergency for the pregnant person, two doctors not professionally related must sign off on the abortion. Unless it is determined the mother is at risk of death or injury, they must take every precaution to save "both the child and the mother." If the premature child is alive, the doctors must provide care for it.

"The goal is to save both lives and treat both patients," Schmidt said in her testimony.

Democrats were ready to ask questions, with most of them coming from Reps. Richard Brown (D-Canal Winchester), Dr. Beth Liston (D-Dublin) and Tavia Galonski (D-Akron). However, Majority Floor Leader Rep. Bill Seitz (R-Cincinnati) jumped in.

The intense back and forth between Brown and Schmidt revolved around the lack of exemptions for rape and incest.

"So under this bill, if a 13-year-old girl, let's say, was raped by a serial rapist, broke into her house, or maybe more likely raped by a family member, which occurs frequently — unfortunately, this bill would require this 13-year-old to carry this felons fetus to term, regardless of any emotional or psychological damage or trauma that may be inflicted upon this 13-year-old girl to deliver this, felons a fetus. Is that right?" he asked.

Schmidt responded and said that rape is a difficult issue.

"It's a shame that it happens, but there's an opportunity for that woman, no matter how young or old she is," she said.

The opportunity — which would be the only option — is to deliver that baby.

"She can choose to raise the child, she can choose to give that child to a loving family member or to give it to someone else — and that child can grow up and be something magnificent, a wonderful family person, cure cancer," she said. "Just because you have emotional scars doesn't give you the right, right to take the life."

Brown followed up.

"You earlier said every life is important — the life of a 13-year-old girl in my hypothetical is important," he added.

He then brings up the pregnant juvenile going to middle school, saying that kids are "mean, they're evil and they're going to say all kinds of bad things to their classmate about her condition."

"I think this girl has rights every bit as much as the zygote that has rights under your bill," he said. "This girl has rights, and I don't believe we can lose sight of the rights of the person who was raped."

Supporters of the bill, like Ohio Right to Life, say just because someone commits a crime, doesn't mean we should have the right to “purposely” end a life.

"They can live a dignified life that shows them that they can overcome certain circumstances," said Elizabeth Whitmarsh, a spokesperson for the organization. "That might seem impossible in the moment, but they're able to get through it."

Pro-Choice Ohio, who was also at the hearing, said everyone should be entitled to make their own health care decisions without government mandates.

"It doesn't matter what that person's reason is for having an abortion, they need to have access to abortion in their community without stigma, judgment or delay," said Jaime Miracle, deputy director for the group. "They need the abortion that they have decided is best for them and their family."

Another argument that was brought up by legislators on each side was how the bill was too open for interpretation.

Liston, a physician, lead the questioning on the medical concerns. She started by bringing up the language in the bill surrounding the "exemption" for an individual whose health is in danger.

"How I read this is that a physician could defend themselves against a murder charge with what's called an affirmative defense, in the case of it being life-threatening if they follow provisions A, B, C, D, E and F, which includes a lot of different things, made a lot of documentation, a lot of provisions on what's available at a facility," the doctor said. "Physicians cannot terminate a pregnancy — period. They can defend themselves from it, from a charge in the setting of life-threatening complications if they follow these specific steps is."

Schmidt didn't answer the question, but rather reiterated the language in the bill.

Liston continued on to give examples of different circumstances in pregnancy that will result in the death of a pregnant person, such as partial or incomplete molar pregnancies, severe preeclampsia and ectopic pregnancies.

"The longer one waits before terminating the pregnancy, the more risk there is to a woman," she said. "There's no good outcome here — there's no live birth."

Liston then brings up how there are no non-ICUs in the world that can resuscitate before 22 weeks. For extreme preemies, there are only three in Ohio — Columbus, Cincinnati and Cleveland.

That, mixed with needing to get two different doctors that aren't affiliated with each other, can make this incredibly difficult to actually get an abortion, Liston said.

"The three hospitals that you mentioned are level one trauma centers," Schmidt said. "When you are a traumatic patient, it is the obligation of the rescue unit to take you to the most appropriate place and those would be, in certain cases, level one centers."

Liston said they don't want it to get to the level of an emergency life flight.

"That is a really difficult gray line that's being created with the threat of jail to doctors that are working with their patients," she said.

She then raises a hypothetical about breast cancer patients and how she wouldn't be able to get treatment because the interacting drugs could be seen as "abortion" drugs.

"Representative Liston, I'm not a doctor," Schmidt said. "But I have read stories of women that have had breast cancer, gone through the treatment and have had normal children. So I can't answer that."

The other main line of questioning was bipartisan confusion on what the trigger for the bill actually was.

Brown and Seitz went back and forth, agreeing on the same question to ask for clarification. Brown had asked a question about what happens when SCOTUS doesn't totally overturn Roe v. Wade, but still makes an assertion on it.

"Ranking member Brown and I don't often agree on very much, but I want to go back to his question," Seitz said. "So, if the Supreme Court says only that the 15-week ban imposed by Mississippi is constitutional and Mississippi can ban abortions after 15 weeks — I think Representative Brown's question, and I kind of agree with him if this is what it means, I would say that your bill would kick in to ban all abortions, even those at less than 15 weeks."

He continued that Ohio has already banned abortion after a heartbeat can be detected at six weeks. He then asked if Schmidt was following his logic, and she said: "in part."

"If the Supreme Court, in part, returns to the states the question of whether to ban abortion after 15 weeks, then your bill should be clarified to say the trigger has not been met," he said. "Would you agree with that?"

"I would be amenable to that kind of an amendment if that clarification is needed," she said.

DeWine's spokesperson said the governor agreed to sign this bill, or a bill similar to this, in a campaign survey to Ohio Right to Life. His team reiterated he is pro-life but has already signed the six-week abortion ban, so he would rather legislators stop putting this type of legislation out until the SCOTUS decision is finalized.

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