Legal Articles

The Introduction of New Criminal Offences Relating to Abortion by the State of Ohio

The state of Ohio has introduced a bill to regulate the field of abortion. HB413 is being regarded as one of the most restrictive and rigorous pieces of legislation which have been introduced in 2019. This is because of the fact that it not only provides for more sanctions with regards to the act of abortion, but also introduces two new offences into the Corpus Juris. 

This is not the first bill that has been discussed and signed in the state of ohio. Governor Mike DeWine previously signed ‘The Heartbeat Bill’ (The Heartbeat Protection Act) which would have put an end to all abortions as of July 11th. However, this was blocked by a federal judge and faced the difficult task of overturning the judgement of Roe Vs. Wade, which declared abortion as a constitutional right in 1973.

The state of Alabama also faced the same challenge when, earlier this year, Governor Kay Ivey signed legislation envisaging the ban of almost all abortions. This was again blocked by the courts and is currently being challenged in court on the basis of Roe Vs. Wade. 

Prior to entering into a legal analysis of HB413, it is good to take note of the fact that abortion is presently legal in the state of Ohio. This bill would however impinge on the legality of the act of a medical abortion as, in a nutshell, if this bill were to pass, it would only permit the carrying out of a medical abortion by a medical practitioner in very extreme circumstances.

The bill was introduced at the 133rd meeting of the general assembly and contains seven hundred and twenty three pages of text. The proposed bill has the following purposes;

  1. To amend a large number of sections in the already present corpus of legislation.
  2. To enact 7 new sections with the purpose of penalising acts of abortion.
  3. The introduction of the Capital offence of ‘Aggravated abortion murder’.
  4. The introduction of the offence of ‘Abortion murder’.

This bill bans the carrying out of an abortion almost entirely. There are only a very limited number of scenarios where the act of abortion may be justified.

House Bill 413 states the following with regards to the offence of ‘Abortion murder’;

“no person shall purposely, and with prior circulation and design, perform or have an abortion”

Abortion murder is the first offence that this bill intends to introduce. This crime is consummated by the presence of one of 2 scenarios. 

The first scenario is when the agent purposely performs an abortion. The word ‘performs’ envisages the making of an abortion i.e. a medical practitioner who (by profession) carries out abortions in an abortion clinic or in any other medical institution having the necessary legal authorisation to carry out such a surgery. 

The second scenario leading to the consummation of the offence of ‘Abortion murder’ is when a person has an abortion. This refers to the person that wants to undertake an abortion surgery so as to terminate the pregnancy. So, here we see that both the active subject (The person that has to carry out the abortion i.e. The medical practitioner) and the passive subject (The pregnant individual on whom the abortion surgery is to be carried out) would be penalised for either performing or having an abortion. 

Furthermore, it is a sine qua non for the offence of ‘Abortion murder’ that the abortion is carried out purposefully and with prior circulation and design. This envisages that there must be an element of planning and premeditation prior to the carrying out of the offence of abortion. Thus, one may state that the constituent elements of abortion are; 

  1. The prior circulation and design to perform or have the abortion (The Mens Rea).
  2. The commission of an abortion by a medical practitioner or the act of omission of having the abortion carried out on your person (The Actus Reus).
  3. The effective termination of the pregnancy.

Upon the existence of these 3 elements the offender would be liable to ;

  1. Imprisonment for 15 years to life.
  2. A fine with the minimum being 1500 USD.

The offence of ‘Aggravated abortion’ is precarious in nature. This bill makes the offence of ‘Aggravated abortion murder’ worthy of the death penalty as any person found guilty of it would be liable to imprisonment for life or face the death penalty. The bill states that the offence of ‘Aggravated abortion murder’ is consummated where a person ;

“purposely performs 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.”

How a person is to perform an abortion and commit an offence such as arson is beyond me. However, if the bill passes, it will be up to the legal practitioners and the courts to try and make sense out of this very unlikely scenario.

This bill provides no exception for abortion where the pregnancy is the result of the offences of rape and incest. Furthermore the only way for an abortion to take place were this bill to enter into force would be when a physician believes that without the abortion, the pregnant individual would die from a certain fatal condition. The bill then goes on to define a fatal condition as ; 

“A disease or injury that will lead to a patient’s death, and does not include wither a condition related to the patient’s mental health or the pregnancy itself”

Furthermore, (and this is where we enter into the realm of impossibility), the bill envisages that the medical practitioner who performs an abortion for the preservation of the life of the pregnant individual, has to do all that is necessary t preserve the life of the foetus. This includes ;

“attempting to reimplant an ectopic pregnancy into the woman’s uterus”

I am not by any means knowledgeable in the medical field, however, by virtue of the research that was carried out in writing this article I have found out that this is not even medically possible. 

One may be exempt from criminal responsibility where he is Doli incapax (Under the age of criminal responsibility) or where the abortion was brought about by fraud, force, fear, duress, intimidation. This alone would however not suffice as the victim of the aforementioned actions would have to file a police report certifying that they were compelled to get an abortion. 

In Conclusion, this bill will most likely be blocked by the federal courts as in the case of ‘The Heartbeat Protection Act’. Like Alabama, the state of Ohio has the very difficult task of overturning the 1973 judgement of Roe Vs. Wade.

 

Bibliography

https://www.billtrack50.com/BillDetail/1145373

https://codes.findlaw.com/oh/title-xxix-crimes-procedure/oh-rev-code-sect-2919-11.html

https://statelaws.findlaw.com/ohio-law/ohio-abortion-laws.html

https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-HB-413

https://family.findlaw.com/reproductive-rights/after-roe-v-wade.html

https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/factsheets/Constitutional-Protection-for-the-Right-to-Abortion-Fact-Sheet2.pdf

https://reproductiverights.org/roe-and-other-rights-liberty-doctrine?s_src=19GAABORTION&gclid=CjwKCAiA8ejuBRAaEiwAn-iJ3kUsOY_hrdjAuyFbTX1GtJPhRRXDEIO0Anwins4tphFbz1cHNE4WFRoClPgQAvD_BwE