Lorraine M. FendeThe Columbus Dispatch reported today on Rep. Lorraine Fende (D- Willowick)’s bill to “ban” late-term abortion:

House Bill 7 would ban abortions after 24 weeks of pregnancy, or past 22 weeks if a test determines a fetus is "viable" and can live outside the womb. It contains an exception if the physical health of the woman is at serious risk but specifies that "does not include a condition related to the woman’s mental health."

"I had a conversation with someone quite some time ago that right now, you could be 81/2 months’ pregnant and have an abortion for no reason," Fende said.

This could be Ohio’s first serious attempt to resurrect a late-term abortion ban that was struck down by the 6th U.S. Circuit Court of Appeals in 1997. But the U.S. Supreme Court ruled 5-4 in 2007 to uphold bans on so-called partial-birth abortion, giving abortion opponents hope that the court would also look favorably on restrictions to late-term abortions.

Except neither statement appears to be true, according to my legal research.

Gang, meet Ohio Revised Code Section 2919.151, which makes the performance of a late term/“partial birth” abortion, except in limited circumstances, a felony in the second-degree (punishable by two to eight years in prison, prison is presumed a necessary sentence over probation.)  It was passed in 2000 as House Bill 351 in the 123rd Ohio General Assembly.  Although, it, too, was challenged on constitutionality grounds, the U.S. Sixth Circuit Court of Appeals upheld its constitutionality in Women’s Medical Professional Corporation v. Taft (2003), 353 F.3d 436.  I cannot find any case or legal authority that would suggest that this late-term abortion ban already in the Ohio Revised Code isn’t legally enforceable.  As far as I can tell, the 2003 decision by the Sixth Circuit is still good precedent. 

The Guttenmacher Institute, whom the Dispatch says it relied upon in creating it’s graphic in today’s story, itself reports that Ohio has a ban on partial birth abortion in effect already.

So, if House Bill 7 isn’t about enacting a late-term abortion, what does it do?

It potentially criminalizes all abortions.  H.B. 7 enacts a new section 2929.17 that makes the performance of any abortion in which the fetus is arguably “viable” a fourth-degree felony.  “Viable” is defined under the bill as:

“the stage of development of a human fetus at which in the determination of a physician, based on the particular facts of a woman’s pregnancy that are known to the physician and in light of medical technology and information reasonably available to the physician, there is a realistic possibility of the maintaining and nourishing of a life outside of the womb with or without temporary artificial life-sustaining support.”

The statute also creates a rebuttable presumption that any fetus at 24-weeks gestational age is viable.  But note that the statute does not create a converse rebuttable presumption that any fetus before 24-weeks ISN’T viable.  The bill declares the issue of the viability of the fetus to be an affirmative defense.  What does that mean?  It means that the State has no burden to proof that a fetus was viable to criminally prosecute a doctor under this provision, even in instances that don’t involve a late-term abortion.  Instead, the doctor has the burden at trial to convince a criminal jury unanimously that the fetus was not viable, or that the abortion was necessary to protect the life of the mother, or to protect from serious and irreversible impairment of the pregnant woman’s medical health.

Normally, affirmative defenses are things in the criminal law in which the law recognizes that the Defendant committed a crime, but holds that certain factors require the Defendant to not be held culpable for the crime such as insanity and self-defense.  In this instance, however, it takes what should be a major element for the State to have to prove beyond a reasonable doubt and forces the accused to prove the negative instead.  Such element shifting can only be by design to encourage prosecutions against any abortion provider.

Fende and her allies in the legislature are calling this a “partial birth” abortion ban, I believe, because they know that public opinion polling has historically shown broad support for “partial birth” bans, but not criminalizing all abortion.  And while the bill does not expressly criminalize all abortions, it’s drafted in such a way that it puts any doctor who performs any abortion, even if they’ve never performed a “late term” abortion, on notice that in so doing they are subjecting themselves to potential grand jury investigations, felony criminal prosecution, civil litigation, and suspension of their medical license unless they are supremely confident that they can convince a judge or a twelve-person unanimous jury that one of the narrow exceptions applies and after the enormous expense of legally defending themselves for providing a legal medical procedure.

This bill is not about criminalizing late-term abortions only, which, again, is already a second-degree felony under existing Ohio criminal laws.  Pass this bill and every pro-life county prosecutor can use the prospect of endless grand jury proceedings into every medical procedure a doctor who performs abortion does to such an extent that it dries up the providing of perfectly legal abortion services.

This bill, implicitly, is designed to use the threat of legal harassment to drive out the providing of any abortion in Ohio.  If that’s not Rep. Fende’s intent, then I’m sure she and her Republican allies in the General Assembly will be open to amending this legislation to avoid such a consequence.

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