Does a Proposed Ohio Bill Posit the Death Penalty for Women Who Undergo Abortions?

Ohio's legislature is considering a bill that would criminalize abortion and potentially impose extreme penalties on women and abortion providers.

On 19 March 2018, HB 565, an abortion abolition bill sponsored by Republican Reps. Ron Hood and A. Nino Vitale and co-sponsored by a group of 16 other Republican legislators, was introduced to the Ohio House of Representatives. That bill, as described by Cleveland Scene, could impose “life in prison or even death penalty specifications” on women and medical providers involved in abortions:

[Seeks] to abolish abortion in the state of Ohio by stipulating that both doctors providing abortions and women seeking them could be slapped with criminal charges for doing so. The bill would also define a fetus as “an unborn person,” opening the door to murder charges that could carry life in prison or even death penalty specifications for the woman or her doctor. There would be no exceptions for rape, incest or for pregnancies that threaten the health of the mother. Under the proposed law, unintentional loss of a fetus during a medical procedure would not count as abortion.

Opponents have characterized HB 565 as “one of the most punitive, and alarming, anti-abortion bills in modern US history” and “the worst intrusion on a woman’s reproductive rights by the Ohio legislature to date.”

The chances of the bill’s actually being passed into law and enacted are questionable as this time, though. First HB 565 would have to clear the Ohio House of Representative’s Health Committee, which comprises thirteen Republicans and six Democrats, then the bill would have to pass a full House vote, but only about 20 other Republicans in the 100-member House have signed on to support it so far.

The bill would also have to be adopted by the Ohio state senate and signed by John Kasich, the state’s governor. Kasich vetoed a 2016 “heartbeat” bill that would have made abortions illegal once a fetus’s heartbeat was detected (typically around six weeks into the gestational period) and has vowed to do the same with a similar bill passed by the House in 2018. Kasich would quite likely do the same with the stricter HB 565 were it to pass both houses of the Ohio General Assembly.

Most important, perhaps, is that the similar (but less restrictive) “heartbeat bill” only passed the Ohio House with 58 votes, a total shy of the three-fifths supermajority (i.e. 60 votes) needed to override a gubernatorial veto.

Of course, even if HB 565 were passed by the General Assembly and signed by the governor (or pushed through over his veto), it would certainly be challenged on constitutional grounds. A similar bill passed in Mississippi that sought to forbid most abortions after 15 weeks of pregnancy was just struck down by a federal judge who declared that it infringed upon a woman’s 14th Amendment due process rights and defied Supreme Court precedents, writing in his opinion that “there is no legitimate state interest strong enough, prior to viability, to justify a ban on abortions” and that Mississippi “chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.”

Nonetheless, given the recent appointments of two U.S. Supreme Court justices that have tilted the court in a decidedly conservative direction, Ohio’s having to defend the bill as a test case challenge to Roe v. Wade is a distinct possibility:

[HB 565] clearly flies in the face of interpretations of the U.S. Constitution set up by the landmark 1973 U.S. Supreme Court decision Roe v. Wade, which guarantees access to abortion up until a fetus is viable outside the womb. In the (as of now) unlikely case that HB565 was passed into law, it would almost certainly set up a legal battle that could go to the U.S Supreme Court. That’s something many boosters of the bill and similar legislation would actually like to see, however. After President Donald Trump’s appointment of two conservative U.S. Supreme Court justices, some conservatives believe that the high court might amend or overturn Roe entirely, given the right case.

[HB 565 co-sponsor Ron] Hood has made it clear HB565 and the “heartbeat” bill are both aimed at this goal.

“House Bill 258 is the vehicle that is needed to revisit Roe v. Wade,” Hood said in a statement following the heartbeat bill’s passage. “The House passage of the bill is a critical step in that long-awaited process.”

Also of importance is the fact that Governor John Kasich was ineligible for re-election to that office in 2018 due to term limits, and his term therefore expires in mid-January 2019. So even if HB 565 were vetoed by Kasich, an identical bill could be introduced in the next General Assembly, whereupon it would be up to governor-elect Mike DeWine (the state’s current attorney general) to sign it or veto it. DeWine has said he would sign a heartbeat bill, but whether he would also sign as restrictive an abortion bill as HB 565 is unknown.

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