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Post-Viability Abortion Restriction

Ohio has a post-viability abortion ban that states that no abortion may be provided after viability unless two physicians certify in writing that it is necessary to preserve the woman's life or to prevent a "serious risk of the substantial and irreversible impairment of a major bodily function" of the woman.  These risks may not include any reason related to a woman's mental health or the diagnosis that the pregnant woman will engage in conduct that would result in her death or a substantial and irreversible impairment of a major bodily function.

The physician must use the method most likely to result in fetal survival unless, based on the physician's good faith and reasonable medical judgment, it poses a "significantly greater risk" of the woman's death or "a serious risk of the substantial and irreversible impairment of a major bodily function" than other available methods; a second physician must attend; the procedure must be provided in a health-care facility with access to neonatal services for premature infants; and a fetus of at least 24 weeks gestational age is rebuttably presumed to be viable. A physician providing abortion care after 20 weeks gestational age must perform extensive viability testing; failure to do so is a fourth degree misdemeanor punishable by a prison term of no more than 30 days and a fine of as much as $250.  Provision of abortion care in violation of any of the other elements of this law is a fourth degree felony punishable by a prison term of six to 18 months and a fine of up to $5,000. Ohio Rev. Code Ann. §§ 2919.16 (Enacted 1995, Last Amended 2011), 2919.17 (Enacted 1995, Last Amended 2011), 2307.52 (Enacted 1995, Last Amended 2011).

A court declared an earlier version of this law unconstitutional because it was not severable from a pre-viability abortion ban that unduly burdens a woman's right to choose, and permanently enjoined the law.  Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998).

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman's life and health.  NARAL Pro-Choice America opposes Ohio's post-viability restriction because the health exception is dangerously narrow.

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