In Inside Courts, retired judge Tom Hodson explains the complexities of the law and legal cases, helping you understand what’s at stake — and how it affects you.
You might have thought that abortion rights were safe in Ohio after the Ohio Reproductive Freedom Amendment to the Ohio Constitution was passed by 57% of the vote in 2023.
But think again.
In mid-June, two southwestern Ohio representatives — Rep. Levi Dean, R-Xenia and Rep. Jonathan Newman, R-Troy — introduced House Bill 370, the Ohio Prenatal Equal Protection Act. Its intent is to “entirely abolish abortion in this state.”
The bill’s numerous cosponsors include Kevin Ritter (R–Marietta), who represents part of Athens County in the 94th district, as well as Rep. Jennifer Gross,(R–West Chester); Rep. Diane Mullins (R–Hamilton Twp); Rep. Thomas Hall (R–Madison Twp); Tim Barhorst (R–Ft. Loramie); and Riordan T. McClain (R–Nevada).
What the bill says
HB 370 defines personhood to commence at fertilization of a woman’s egg. At that point, the bill says, the fertilized egg becomes an “unborn child” with all the rights afforded to any person under the U.S. Constitution — including the Fourteenth Amendment’s guarantee of equal protection under the law. The bill states:
“person” or “another” includes an individual living human child before birth from the beginning of biological development at the moment of fertilization upon the fusion of a human spermatozoon with a human ovum.
In other words, the bill would declare that the fertilized egg, fetus or embryo is a person who has the right not to be killed.
The bill also states that the U.S. Constitution supersedes the Ohio Constitution, thereby wiping out the 2023 Reproductive Freedom Amendment’s guarantee of abortion rights.
Anti-abortion advocate Austin Beigel of End Abortion Ohio told WEWS news in Cleveland that the legislation is intended to go against the voters’ 2023 wishes, comparing opposition to abortion to abolition of slavery:
It goes against the majority opinion of the people of Ohio, and that is something we are proud of because there have been many times in our country’s history where the people have asked for something evil — slavery was once legal in our country.
The proposed bill outlaws all abortion, even in the cases of rape or incest. There are only two exceptions: a spontaneous miscarriage and a life-saving emergency of the mother.
The lifesaving language, however, has a caveat of trying everything to save the life of the child: “The undertaking of life-saving procedures on a pregnant woman when such procedures are accompanied by reasonable steps, if available, to save the life of her unborn child.”
Under the bill’s guidelines, any woman who has an abortion or doctor who performs one could be charged with some form of homicide, including murder. The impregnated woman would have a defense to a murder charge if she was forced to have an abortion under duress.
The statute says: “The common law defense of duress is a valid defense to homicide where the victim is an unborn child, and the defendant is the child’s mother if the defendant is the object of the threat and the elements of duress otherwise exist.”
In addition addressing abortion, critics claim that the bill’s language would also outlaw IVF in Ohio and some contraceptive devices such as IUDs. However, in an interview with Miami Valley Today, Rep. Newman claims the proposed language does not “seek to end or prohibit IVF.” He says it “highlights the need for better ethical standards” for IVF.
Whether the bill pertains to IVF and IUD’s should become clear during upcoming committee hearings.
This proposed statute raises thorny criminal and civil legal questions. The full extent of the bill’s scope is somewhat murky. I will raise some of issues in the following hypotheticals.
Hypothetical situations
Hypothetical 1
It is unclear whether the homicide provision would apply to a woman who was impregnated in Ohio but had a legal abortion in another state.
Would the mother still be charged with murder even though her abortion was legal? Would the out-of-state doctor be charged in Ohio with murder even though he was a resident of another state that permitted abortion?
Also, how would the prosecution prove the site of impregnation? That could be a difficult element to prove in some scenarios.
Even with all those complications, I think the statute, if passed, would apply and that the mother and the out-of-state doctor could be charged with homicide.
Hypothetical 2
What would happen if a man and woman are Ohio residents, but she gets impregnated elsewhere — for example, while on vacation in North Carolina?
The pregnant woman then travels to Massachusetts and obtains a legal abortion. She returns to Ohio.
Could she still be charged with murder in Ohio? Under the current language, it looks like that is a good possibility even though she was impregnated in another state and obtained a legal abortion in yet another jurisdiction.
Hypothetical 3
If a husband or sexual partner forced the mother to have an abortion under duress, could the man or sexual partner be charged with homicide?
Under that circumstance, it seems like the answer is — yes. The mother would have a valid defense but not the party causing the duress and forcing the abortion.
It also should be noted that under the proposed statute that a mother could be charged with homicide for an abortion as well as anyone who directs, advises, encourages, or solicits a mother to abort her child.
The bill is silent as to any potential criminal penalties against the father of the unborn child.
Hypothetical 4
It also is presumed that under HB 370 the unborn fertilized egg, embryo or fetus would have rights under civil law as well.
The current version of the bill says its intent is in “protecting the lives of preborn persons with the same criminal and civil laws protecting the lives of born persons.”
The civil side of this legislation has not been thoroughly discussed publicly, but I can speculate what might occur.
If an aborted egg, embryo or fetus is considered a person, then the aborted “person” would have a right to have an “estate” as would any other dead Ohio resident.
Would the estate of an aborted egg, embryo or fetus then have legal standing to sue a hospital, doctor or prospective mother civilly for money damages for wrongful death or a civil rights violation?
The logical extension of the bill, as introduced, would say yes.
If damages were obtained because of litigation or settlement, the proceeds would then go to the “preborn person’s” estate and be distributed by the Ohio statutes to the heirs of the preborn child.
Since the “preborn person” died without a Last Will and Testament, the estate would be doled out by Ohio’s Descent and Distribution statute.
The money would normally go to the parents of the deceased, but if the parents were involved with the “murder” of the unborn person, they could not, by law, inherit money. In that case, the money would go to the unborn’s siblings, if any. If there are no siblings, then the money would go to the grandparents of the unborn person.
You can see, this can get really confusing quickly.
Supporters and opponents
The legislation was sparked and backed by End Abortion Ohio, which describes itself as “a distinctively Christian organization that is committed to working toward the legal abolition of abortion in Ohio.”
The bill has yet to receive the support of the Ohio Right to Life group.
It is opposed by the American Civil Liberties Union, Abortion Forward, Planned Parenthood of Ohio Advocates and the National Organization of Women, among other groups.
Current Status
Although HB 370 was formally introduced on June 18, it has not been assigned yet to a committee for review and hearings. The Ohio House is in recess until September.
A coming court battle?
If this bill passes the General Assembly and is signed by the governor, it will most assuredly be challenged in court. That is a given on both sides of the issue.
It would tee up a classic constitutional conflict between the U.S. Constitution and a state constitution.
Proponents of the bill would love to have the validity of this proposed statute litigated in Ohio’s state court system and ultimately be decided by the Ohio Supreme Court, that is now controlled 6 to 1 by a Republican super-majority.
Ultimately, whether litigated in the state courts or federal courts, the validity of this proposed statute might work its way to the U.S. Supreme Court.
Proponents are thinking this is a way to force a complete ban on abortion and be a model for other states to follow.
I will continue to monitor this bill as it gets assigned to a committee, has hearings and perhaps gets amended.
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