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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  • Anonymous

    To be honest, I don’t know what her intent is, or if she’s even thinking clearly, if she’s enough of an ass and a fool and liar to publicly be passing on the ultra-right-wing canard that “you could be 81/2 months’ pregnant and have an abortion for no reason.” I think you may be overreading the bill, and it may be simply showboating, imposing a cruel, punitive government takeover of the health care of women seeking some of the mmost tragic abortions — women who want their babies but discover health or mortality issues late in their preganncies

  • Anonymous

    I’m thinking this may be political showboating but if this doesn’t strip her and her handful of Democratic colleagues of ALL support of the state party, we’re heading for another Garrison debacle. I hope the folks at the ODP understand how infuriated Democratic women are by this. If they don’t want their volunteer base to shrink in 2012 like it did in 2010, they need to lose Fende.

  • Anonymous

    You want the State party to give up her seat in the General Assembly over this? I don’t follow what this has to do with the State party.

  • Anonymous

    You can’t overread a bill. Especially when you are just pointing out what it actually says as opposed to what the proponents, like Ohio Right to Life, claim it says. Again you can read H.B. 7 with the link I included and decided for yourself. But I read it, and to me it clearly criminalizes all abortions with limited affirmative defenses that the doctor charged under the statute has the burden of proof at trial.

  • Anonymous

    No, I don’t expect her to quit. But she’s term-limited, and word in her district is she wants to run for the senate seat out there which may be part of her warped thinking here. I say “warped” because it really is irrational for her to think she will get ANY votes from anyone for whom being anti-choice is the deciding issue. Confronted with an anti-choice Democrat and an anti-choice Republicans that voter will always pick the anti-choice Republican. Meanwhile, this grandstanding of her will cost her Democratic support and the party needs to send her a firm message that she’s not a viable candidate and will not get any support from them for her run. The problem for them is that alienating Democratic women any further could send shock waves that would have repercussions for Sherrod and for Obama. They can’t afford another Garrison, not even in a local race. We are in a time when radical conservatives are threatening women’s choices and can do literally anything they want to take away our “freedoms” and put government in charge of our health care. There is nothing to stop them. We cannot afford to have our bedrock principles sabotaged from within.

  • Anonymous

    I dunno. Being pro-life hasn’t hurt Congressman Tim Ryan any. Driehaus won in 2006, in part, because he was able to sway pro-life Independents in that district that he was with them on more issues than Chabot was.

    Kucinich, you could argue, did better in his district when he was a pro-life Democrat before he switched to being pro-choice when he decided to run for President.

  • Anonymous

    I dunno. Being pro-life hasn’t hurt Congressman Tim Ryan any. Driehaus won in 2006, in part, because he was able to sway pro-life Independents in that district that he was with them on more issues than Chabot was.

    Kucinich, you could argue, did better in his district when he was a pro-life Democrat before he switched to being pro-choice when he decided to run for President.

  • Anonymous

    Anastasia- Let’s remember the rest of the tale of Jennifer Garrison. Garrison was forced out by the State party and replaced with a pro-choice Democratic woman who failed to raise significant money, was overwhelmed by her prolific fundraising opponent and lost the SoS race. Garrison, annoyed with her being litmus tested out of running for statewide office, then also decided not to run for re-election in her House seat all but guaranteeing it went to the Republicans in November… which it did.

  • Anon

    Sorry, you’re wrong. The later 2003 opinion only upholds a ban on the particular “partial birth” method. That method might be used for later term abortions, but it’s not the only method. A late term ban would ban all abortions, by any method, past a certain point. That may be a bad idea or not, and the approach in this current proposal might be a bad idea or not. But your analysis is mistaken. It’s understandable, because late term and “partial birth” have often been equated, but they’re not the same.

  • Miles

    Driehaus outperformed Obama in CD 1 by a whopping 3% in 2008.

    Meanwhile, October 2010 polling showed 18% of pro-choice voters were voting for Chabot, while 9% of anti-choice voters were voting for Driehaus. So it’s very likely that being anti-choice was a net loss for Driehaus in 2010.

    “Being [anti-choice] hasn’t hurt Congressman Tim Ryan any.” How do pro-choice Dems fare in that district? I mean, that’s Traficant’s seat–being clearly insane doesn’t hurt you in that district enough to make it competitive.

    Meanwhile, every statewide Dem lost in 2010. Aside from base turnout in (pro-choice) Cuyahoga County, there’s nothing anybody could have done differently. There’s around a 5% underperformance for any statewide female candidate, because a large portion of state Democratic voters that are misogynists.

  • Miles

    You didn’t mention that Fende is the Ranking Minority Member of the House Committee on Health and Aging, as well as its only anti-choice Democrat. And here she is with this “bi-partisan” bill that will only hurt Democrats electorally.

    What’s up with that? Who assigns these committees, and why would they empower somebody who disagrees with the state platform on the committee on which they serve?

    We’re going to get a lot of anti-choice bullshit like this to serve as electoral wedges, and ODP is shooting itself in the foot by giving Fende a megaphone.

  • Anonymous

    Except that the 1997 decision that Ohio Right to Life says the Sixth Circuit killed Ohio’s late-term abortion ban was also actually nothing more than a ban on partial birth. The term is used synonymously.

  • Anonymous

    Traficant wasn’t pro-choice either. Do you have a link to that poll for OH-01? I’m unfamiliar with those numbers and can’t respond without reading it.

    If true, what does it say the “pro-choice” vote that they’d go with a t-totaler like Chabot over Driehaus? Regardless, those numbers, if valid, don’t show that being anti-choice was a net loss for Driehaus in 2010. You’d have to have a poll showing that a pro-choice Democrat would have done better in the district (despite the countless elections in which pro-choice opponents of Chabot fared WORSE).

  • Anonymous

    Show me ODP is giving her a megaphone, first.

    ODP isn’t involved in legislative committee assignments. That choice is left up to House Minority Leader Buddish. Ask him. Could be a number of factors. Big tent? She has the most seniority on the committee? Certain expertise? She’s the only one interested in being the Ranking Member of the Committee (which is purely a ceremonial title that carried no real influence.)

  • Anonymous

    Show me ODP is giving her a megaphone, first.

    ODP isn’t involved in legislative committee assignments. That choice is left up to House Minority Leader Buddish. Ask him. Could be a number of factors. Big tent? She has the most seniority on the committee? Certain expertise? She’s the only one interested in being the Ranking Member of the Committee (which is purely a ceremonial title that carried no real influence.)

  • Miles

    Sorry for being way too verbose. Here’s the poll:
    http://www.surveyusa.com/client/PollReport.aspx?g=80eccc67-aa69-41ad-be70-fca15d656922

    “Pro-life” people preferred Chabot 77-18
    “Pro-choice” people preferred Driehaus 71-24
    7% of Chabot voters say that they’re doing so because of choice, to 2% of Driehaus voters.

    So, Driehaus gains 2% there. However, Chabot takes 17% of the African-American vote.

    I’m not saying a pro-choice candidate would outperform Driehaus; indeed, all else being the same, Driehaus would outperform that candidate by 2% (whoopee).

    I’m saying that a candidate that has more appeal in the African-American community would solidify the African-American base and increase turnout. The only African-American to run (in a district where the majority of Dem voters are black) is…. Ken Blackwell.

    The only 2 Dems to win Hamilton County in 2010 were David Pepper (pro-choice) and Tracie Hunter* (African American). Tracie Hunter is anti-choice, but I guarantee you that nobody in Cincinnati’s organized anti-choice movement is going to vote for an African-American woman.

    Finally, I don’t think it’s possible to show, but I’m guessing that David Pepper won CD-1 (since it’s the more progressive part of the county, and he won the county) and he is (quietly) pro-choice. So, that would be a pro-choice Democrat doing better in the district.

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  • Anon

    Sorry, modern, you’re wrong about the 1997 opinion. Look at the opinion and at the code provisions quoted. There were two entirely separate laws at issue. One was a post-viability ban, which covered all abortions past a certain point, regardless of method used. The other was the “partial-birth” ban, which covered all abortions using the D&X method, regardless of how early or late in pregnancy. The court’s opinion shows that it reviewed the one, and then the other. In fact, one of the reasons the partial-birth ban got struck down was that it was held to the higher standard used for pre-viability restrictions, because the method-based ban spanned both pre-viability and post-viability. Press reports and others may use the terms as synonyms, but the laws did not, and the cases did not. Read the case again. Two distinct code provisions were in play, with two distinct approaches. They did overlap, if someone did a post-viability abortion with the banned method, but each had an independent basis, either method or timing.

  • Anonymous

    Always aware that they were two different statutes. Again look at the 2003 opinion, it references the statute in the 1997 as a predecessor of the statute before it. You can’t do a DX except in late term, by definition. The cases DID use the terms synonymously.

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