Abortion Ban

BAN ON ABORTION PROCEDURE

Ohio bans a safe abortion procedure. 

While a lower court held that Ohio's 2000 ban on abortion procedures is unconstitutionally vague and contains an impermissibly narrow exception to protect women's health, an appellate court overturned that decision and allowed enforcement of the law.  Women's Med. Prof'l Corp. v. Taft, 162 F. Supp. 2d 929 (S.D. Ohio 2001), rev'd, Women's Prof'l Med. Corp. v. Taft, 353 F.3d 436 (6th Cir. 2003).

The U.S. Supreme Court previously held that a ban that lacks an exception to protect a woman's health and that bans more than one procedure places an undue burden on a woman's right to choose and is unconstitutional.  Stenberg v. Carhart, 530 U.S. 914 (2000).

Ohio's ban makes the performance of any abortion procedure that falls within a specific definition a felony, unless the procedure is necessary, in the physician's reasonable medical judgment, to preserve the life or health of a woman endangered by a "serious risk of the substantial and irreversible impairment of a major bodily function."  Ohio Rev. Code. Ann. § 2919.151(B) (Enacted 2000).  A "serious risk of the substantial and irreversible impairment of a major bodily function" is defined as "any medically diagnosed condition that so complicates a pregnancy as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function."  Ohio Rev. Code. Ann. § 2919.151(A)(5) (Enacted 2000).  The Sixth Circuit is the only Circuit in the country to have upheld such a dangerously narrow health exception.

This law does not prohibit the suction curettage, the suction aspiration, or the dilation and evacuation abortion procedures.  The woman, the "father" of the fetus if it was not conceived by rape, and the parent of the woman if she is under 18 may obtain monetary relief in a civil action.  Ohio Rev. Code Ann. §§ 2305.114 (Enacted 2000), 2307.53 (Enacted 2000), 2919.151 (Enacted 2000).

In addition, a court held that Ohio's original ban on "dilation and extraction" abortion is unconstitutional and has permanently enjoined it.  Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998).  This law was repealed.  Ohio Rev. Code Ann. § 2919.15 (Enacted 1995; Repealed 2000).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

An Ohio law provides that a woman may not obtain an abortion until at least 24 hours after a physician informs her verbally, individually, in person, and in a private setting, of:  (1) the nature of the procedure and its medical risks; (2) the probable gestational age of the fetus; and (3) the medical risks associated with carrying the pregnancy to term.

The law further provides that at least 24 hours prior to an abortion, a physician or physician's agent, in person, by telephone, by certified mail, or by regular mail evidenced by a certificate of mailing, must provide the woman with the name of the physician who is scheduled to provide the abortion and give her state-prepared materials that must include:  (1) a description of the probable anatomical and physiological characteristics of the fetus at two-week gestational increments for the first 16 weeks and at four-week gestational increments for the remainder of the pregnancy, including the possibility of viability; (2) a comprehensive list of public and private agencies and services, including adoption agencies, available to assist her through pregnancy, upon childbirth, and while the child is dependent; (3) information about medical assistance benefits available for prenatal care, childbirth, and neonatal care; and (4) information about the support obligations of the "father."

Ohio Rev. Code Ann. § 2317.56 (Enacted 1991; Last Amended 1998).

In 1998, upon agreement of the parties, a court issued a preliminary injunction prohibiting the enforcement of this law, allowing a previous version to remain in effect.  Cincinnati Women's Services v. Taft, No. 1:98-CV-289  (S.D. Ohio Apr. 29, 1998) (agreed order granting injunction).  In 2005 the court lifted the injunction and found the mandatory-delay provision of the statute constitutional.  Cincinnati Women's Servs. v. Taft, 466 F.Supp.2d 934 (S.D. Ohio Sept. 8, 2005).  The appellate court upheld the lower court decision allowing the law to remain in effect.  Cincinnati Women's Servs. v. Taft, 468 F.3d 361 (6th Cir. 2006). Notably, the new law mandates that a woman who chooses abortion must make two trips to the provider.  Cincinnati Women's Services v. Voinovich 468 F.3d 361 (6th Cir. Oct. 4, 2005).

The state-prepared materials include color photographs of fetuses.  Ohio Dep't of Health, Fetal Development & Family Planning (June 2001).

The previous version of the law is substantially similar except it requires the physician to inform the woman of the nature of the proposed procedure and its medical risks; the probable gestational age of the fetus; and the medical risks associated with carrying the pregnancy to term verbally or by other non-written means of communication rather than verbally, individually, in person, and in a private setting.  A court held that this previous version - which was construed subsequently by the Ohio attorney general to require only one visit to the provider - was constitutional.  Preterm Cleveland v. Voinovich, 627 N.E.2d 570 (Ohio Ct. App. 1993), appeal dismissed, 624 N.E.2d 194 (Ohio 1993); Ohio Op. Att'y Gen. No. 94-094 (Dec. 30, 1994).

Counseling Ban/Gag Rule

No funds received through grants for women's health services made by the health department may be used for abortion counseling or referrals, except in a medical emergency.  A family-planning program receiving such funds must be organized so that any provision of abortion services is physically and financially separate from the provision of other services.  Ohio Rev. Code. Ann. § 3701.046 (Enacted 2006); Ohio Admin. Code § 3701-68-01(B).

No funds appropriated to the health department for genetics services may be used to counsel or refer for abortion, except in the case of a medical emergency.  H.B. 119, 127th Gen. Assem., 2007-2008 Reg. Sess. (Ohio 2007) (Enacted 2007).

Insurance Prohibition for Abortion

State funds for health insurance for state employees may not be used to provide coverage for abortions unless necessary to preserve the woman's life or the pregnancy was the result of rape or incest and reported to a law enforcement agency. Beneficiaries may obtain coverage by paying an additional premium for an optional rider. Ohio Rev. Code Ann. § 124.85 (Enacted 1998).

Other Anti-Choice Law

Ohio limits the provision of mifepristone in ways that are both medically unnecessary and so inflexible that they lack exceptions to protect a woman's life or health.

In 2004, Ohio enacted a law banning any person from distributing mifepristone unless many conditions are met. Ohio Rev. Code Ann. §2919.123 (Enacted 2004).  At this time, however, the law is unenforceable, due to a permanent injunction issued by the U.S. District Court for the Southern District of Ohio, which will remain in effect until the 6th Circuit reviews for vagueness several of the questions of state law raised in the case.  Planned Parenthood Cincinnati Region v. Taft, 337 F.Supp.2d 1040 (S.D.Ohio 2006), aff'd in part, and remanded, 531 F.3d 406 (6th Cir. 2008), cert. granted, No. 2008-1234 (Ohio, Oct, 20, 2008). In issuing the injunction, the U.S. District Court for the Southern District of Ohio held that the law is unconstitutionally vague and that no portion of the law may be severed.  The 6th circuit certified two questions to the Ohio Supreme Court, asking for clarification on whether the law imposes certain types of limits on the use of mifepristone.  The Surpreme Court interpreted these questions in the same manner as the district court had. Cordray v. Planned Parenthood Cincinnati Region, No. 2009-Ohio-2972, slip op. (Ohio S. Ct. July 1, 2009).

The currently unenforceable law would prevent doctors from engaging in evidence-based or "off-label" use of mifepristone.  Standard medical practice assumes that in many instances, evidence-based drug use is essential to providing optimal patient care, and off-label use of mifepristone is common, safe, effective, and necessary.  While estimates vary about the total number of prescriptions written for evidence-based use, an American Medical association (AMA) official has estimated that 40-60 percent of all prescriptions in the United States are written for evidence-based uses.  Again, the law contains no exception to protect the life or the health of the woman.  

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Ohio allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply? Individuals and hospitals.

What does the refusal clause allow? No person may be required to participate in medical procedures that result in an abortion. No hospital may be required to permit abortion. The refusal to participate or permit may not be a basis for civil liability, disciplinary action, or other recriminatory action. A claim for civil damages may be brought for violation of the provision protecting individuals.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

Ohio Rev. Code Ann. § 4731.91 (Enacted 1974).

Restrictions on Low-Income Women's Access to Abortion

Ohio prohibits public funding for abortion for women eligible for state medical assistance for general health care unless:  (1) the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself; (2) the pregnancy is the result of rape and the crime is reported to a law enforcement agency prior to the abortion unless the physician certifies that the woman is physically unable to comply; or (3) the pregnancy is the result of incest reported to a law enforcement agency or to a county children services agency prior to the abortion unless the physician certifies that the woman is physically unable to comply.  Ohio Admin. Code § 5101:3-17-01; Ohio Dep't of Job and Family Servs., Ohio Medicaid Provider Handbook, Physician Servs., 5101:3-17-01 (Rev. Mar. 5, 2005) at http://emanuals.odjfs.state.oh.us/emanuals/DataImages.srv/emanuals/pdf/pdf_books/PhysicianServices.pdf; Ohio Dep't of Job and Family Servs., Physician Servs., 5101:3-17-01 Appendix A, Abortion Certificate Form, JFS 03197 (Rev. Mar. 2005) at http://emanuals.odjfs.state.oh.us/emanuals/DataImages.srv/emanuals/pdf/pdf_books/PhysicianServices.pdf.

Restrictions on Young Women's Access to Abortion

Ohio law restricts young women's access to abortion.

Is the law enforceable?  Yes.  The United States Supreme Court held that an earlier version of this law is constitutional.  Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990).  In addition, a court held the 1998 amendments to this constitutional, but on appeal, the single-petition rule was found unconstitutional. Cincinnati Women's Services, Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006).

Who is considered a minor?  A young woman under the age of 18 who is not married, not in the armed services, not employed or financially independent, or who is not otherwise independent from the care and control of her parents.

What is required - parental consent or parental notice?  Consent.

Who must give consent?  One parent.

Are there other trusted adults who may be notified instead?  No. 

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the attending physician secures the written consent of one parent.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  No.  However, any person alleged to violate any provision of the law because of "immediate threat of serious risk to the life or physical health" of the young woman from her pregnancy necessitating an immediate abortion may raise it as an affirmative defense in any criminal, civil, or administrative hearing.

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  The minor may obtain an abortion without parental consent by securing a court order stating that she is sufficiently mature and well informed enough to make her own decision or that an abortion is in her best interests.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  Yes.  The United States Supreme Court held that an earlier version of this law is constitutional.  Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990).  In addition, a court held that amendments to this law that were enacted in 1998 are constitutional.  Cincinnati Women's Services, Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006).

Other information about the law:  An unemancipated young woman under 18 may only attempt to undergo the judicial bypass procedure one time during a pregnancy, even if, for example, her bypass is denied but then her circumstances change or new evidence is discovered.  Ohio Rev. Code Ann. § 2919.121 (Enacted 1998).  A court had previously declared this and other amendments to this law constitutional, but upon appeal, this single-petition rule was found unconstitutional   Cincinnati Women's Servs. v. Taft, 466 F.Supp.2d 934 (S.D. Ohio 2005); Cincinnati Women's Servs. v. Taft, 468 F.3d 361(6th Cir. 2006).

Ohio Rev. Code Ann. §§ 2151.85 (Enacted 1985), 2505.073 (Enacted 1985), 2919.12 (Enacted 1974; Last Amended 1995), 2919.121, .122 (Enacted 1998).

Targeted Regulation of Abortion Providers (TRAP)

Ohio imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:

Restrictions on Where Abortions May Be Performed

Ohio places medically unnecessary restrictions on where abortions may be performed.

Each clinic must have a written transfer agreement with a hospital.  Ohio Admin. Code § 3701-83-19(E).  A federal appeals court held that this restriction is constitutional, even if it means that some clinics may not be able to operate.  Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595 (6th Cir. 2006).  The provision makes no exception for clinics in rural areas, or if no local hospitals will agree to a transfer agreement.

Ohio has an unconstitutional and unenforceable requirement that all abortions after the 14th week after the first day of the woman's last menstrual period be performed in a hospital.  Ohio Admin. Code § 3701-47-01(E), 3701-47-02(A) ("Immediate post-abortion care shall be provided in a hospital.").

The U.S. Supreme Court held that a second trimester hospitalization requirement unconstitutionally burdens a woman's right to choose to have an abortion.  Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983).

Restrictions on Who May Perform Abortions

Ohio prohibits certain qualified health care professionals from performing abortions.

Only a person certified by the state medical board to practice medicine or surgery may perform an abortion.  Ohio Rev. Code Ann. § 2919.11 (Enacted 1974), Ohio Rev. Code Ann. § 4731.41 (Original Statute Enacted 1868; Recodified 1953; Last Amended 1998).