Republican lawmakers in Ohio have proposed a bill that would make it possible in some cases for both abortion providers and pregnant people who obtain abortions to be put to death.
Introduced on Monday, the bill is the most restrictive that any state legislature has considered this year. That honor previously belonged to Alabama’s Human Life Protection Act, or HB 314, which is currently blocked from taking effect. HB 314 criminalizes abortion and threatens providers with up to 99 years in prison, but includes a broad health exception and exempts pregnant people from criminal and civil liability.
Ohio’s bill cranks it up to eleven.
HB 413 clocks in at 723 pages and adds two newly created felonies to Ohio’s criminal code: abortion murder and aggravated abortion murder.
The bill says that a person is guilty of abortion murder if they “purposely perform or have an abortion” or if they commit a first- or second-degree violent felony (aside from the abortion itself) that causes an abortion.
The bill also says—and this is where it gets weird—that a person is guilty of aggravated abortion murder if they “purposely perform an abortion while committing or attempting to commit kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism or escape.”
Show me the person that can perform an abortion while committing arson, and I’ll show you a person who is remarkably good at multitasking.
The penalty for abortion murder is imprisonment for 15 years to life, and the penalty for aggravated abortion murder is life imprisonment or death. Let me type that loudly so you can understand how perverse this is: Lawmakers in Ohio who call themselves pro-life think that in some instances, a pregnant person should be put to death for having an abortion.
Try making that make sense. It’s impossible, I know.
In comparison to the Ohio bill, Alabama’s extreme abortion ban almost seems kinder and gentler (though it is far from it). The Alabama bill permits abortion to “avert [a] death or avert serious risk of substantial physical impairment of a major bodily function.” In addition, mental illness could provide the basis for an abortion in Alabama if a licensed psychiatrist determined that the mental illness might result in the pregnant person’s death or the death of their fetus.
Not so in Ohio.
HB 413 bans abortion almost entirely: No person is allowed to perform an abortion, and no person is allowed to have an abortion. There is no exception for rape and incest. And the health exception, if you can call it that, requires a physician to believe that it is “highly probable that the pregnant woman will die from a certain fatal condition.” The bill defines “fatal condition” as “a disease or injury that will lead to a patient’s death, and does not include either a condition related to the patient’s mental health or the pregnancy itself.”
As if that’s not enough, the bill requires that a physician who performs an abortion to preserve the life of a pregnant person take all possible steps to preserve the life of the fetus, including, if applicable, “attempting to reimplant an ectopic pregnancy into the woman’s uterus,” which—as I have written before—is not something that is medically possible.
In HB 413, a pregnant person must be on the verge of death before an abortion provider can intervene. And if a pregnant patient is suffering from a severe and diagnosed mental health issue? Well that’s just too bad.
I guess pregnant Ohioans should be thankful for this part in the bill: If a person who obtains an abortion can prove that they were compelled by force, fear, duress, intimidation, or fraud to have an abortion and they file a police report certifying in writing that they were compelled to get an abortion, they can escape punishment. Gee, thanks.
The ban is, as House Minority Leader Emilia Sykes said, according to the Cincinnati Enquirer,“the most brazen and absurd attempt yet to deny Ohio women their fundamental freedoms, to interfere with the patient-doctor relationship and disproportionately target communities of color across Ohio.”
It’s also blatantly unconstitutional, as all pre-viability abortion bans are, and Republican lawmakers in Ohio know it. The state has already enacted pre-viability abortion bans that have been blocked: In April 2019, a federal court blocked Ohio’s ban on dilation and evacuation abortions, the most common second-trimester abortion procedure. The court ruled that the law imposes an undue burden on a large fraction of pregnant women seeking a pre-viability second-trimester abortion. In July, a federal court issued a preliminary injunction blocking Ohio’s six-week ban, ruling that the law places an undue burden on a patients’ right to choose a pre-viability abortion. And last month, the Sixth Circuit Court of Appeals blocked the state’s Down syndrome ban, ruling that it unconstitutionally inhibits pre-viability abortions on the basis of a pregnant person’s reason for seeking the abortion.
But the point of passing these patently unconstitutional bans—as with nearly all of the pre-viability abortion bans that have been sweeping the nation this year like so much baby fish mouth—is to provide the federal courts with legislation for a test case to try to end abortion. And with so many cases percolating in the federal courts, which Trump has packed with conservative ideologues, it is simply a question of when the Roberts Court will take up a direct challenge to Roe v. Wade.
For now, however, Ohio’s attempt to turn legal abortion into homicide will likely be blocked by a federal court. And until a court says otherwise, abortion remains legal in Ohio.