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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).

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