Ohio Abortion Restriction Updates

​​Ohio's strict abortion legislation attempts have previously been a topic of discussion.  However, Ohio’s most recent attempt at abortion regulation takes a different angle at tackling this type of regulation.  Ohio had previously considered a bill of this magnitude, but no such bill had ever passed in the Senate.  However, after finally passing through both the House and the Senate, the strict bill was ultimately vetoed by Governor Kasich in favor of one that remained similar to Ohio’s previous abortion scheme.

In early December, the Ohio Senate passed the bill that is commonly known as the “Heartbeat Bill.”  This bill would essentially ban abortions after a heartbeat has been detected in the fetus, regardless of when that occurs in the woman’s pregnancy.  In most fetuses, a heartbeat can be heard in as early as six weeks.  This would have made the Ohio law one of the strictest abortion laws in the United States. 

The legislation came in the form of a last-minute amendment to a totally unrelated bill.  The amendment did not include any exceptions for victims of rape or incest.  The only exception was to save the life of the mother.  Historically, there have only been two states that have attempted this type of legislations—Arkansas and North Dakota.  Laws in both states have been “deemed unconstitutional by the 8th Circuit Court of Appeals and are currently on hold as the U.S. Supreme Court declined to hear their appeals.”  This bill would have held a physician performing an abortion after the detection of a fetal heartbeat, or without checking to hear a fetal heartbeat, liable and charged with a fifth-degree felony. 

The law that was in effect at the time this bill was passed by the Senate, was the 2011 legislation giving a timeframe of twenty weeks, unless a doctor can determine that the fetus would not be viable outside of the womb.  Ten days after being approved by both the House and the Senate, Governor Kasich was given ten days to either sign the bill into law or veto it.  If the Governor failed to do one or the other, the legislature would assume his consent and the bill would have come into law in early 2017. 

Individuals following this type of legislation know that no such law is currently enacted in Ohio.  Governor Kasich, within his ten allotted days, vetoed the “Heartbeat Bill.”  Instead, the Governor approved a law that prevented abortions after twenty weeks of pregnancy.  This seems similar to the 2011 legislation, except Ohio’s new law removed any mention of viability and simply bans any abortions after twenty weeks.  Violations of this law, meaning providers that conduct abortions after the twenty week gestation mark, will be charged with a fourth-degree felony​

Currently, no state has a “Heartbeat Bill,” which is largely due to the legal challenges that would be brought if such a bill was passed.  As it stands now, overreaching laws typically make their way through the court system to identify constitutionality issues.  With the current makeup of the Supreme Court, those challenges are unlikely to yield in favor of strict laws like Ohio’s.  However, as newly inaugurated President Trump makes his Supreme Court nominee, we may begin to see a shift in the way courts rule on such matters.

Kathryn Green is currently a second-year law student at DePaul University College of Law. Ms. Green graduated from Texas State University with a degree in Healthcare Administration. She is an active member in the Health Law Institute and will complete her law degree and certificate in health law in 2018.