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‘Pro-life’ bill allows possibility of death penalty for abortion providers and pregnant people

An Ohio bill could end up criminalizing people who have miscarriages, abortion access advocates say.

WASHINGTON, DC - SEPTEMBER 04:  Protesters dressed in The Handmaid's Tale costume, protest outside the hearing room where Supreme Court nominee Judge Brett Kavanaugh will testify before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Hart Senate Office Building on Capitol Hill September 4, 2018 in Washington, DC. Kavanaugh was nominated by President Donald Trump to fill the vacancy on the court left by retiring Associate Justice Anthony Kennedy.  (Photo by Win McNamee/Getty Images)
WASHINGTON, DC - SEPTEMBER 04: Protesters dressed in The Handmaid's Tale costume, protest outside the hearing room where Supreme Court nominee Judge Brett Kavanaugh will testify before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Hart Senate Office Building on Capitol Hill September 4, 2018 in Washington, DC. Kavanaugh was nominated by President Donald Trump to fill the vacancy on the court left by retiring Associate Justice Anthony Kennedy. (Photo by Win McNamee/Getty Images)

Ohio Republicans are considering a bill during the lame-duck session that would redefine and ban abortion, and potentially punish people with severe criminal penalties if they perform or undergo an abortion, according to local public radio station WOSU.

The bill, HB 565, was introduced in March and is currently awaiting consideration in the health committee. From fertilization to birth, the “unborn human” would be included under the definition of person in the criminal code. The measure also redefines abortion to mean the purposeful termination of a pregnancy by any person, including the pregnant person, “any method, including, but not limited to, chemical methods, medical methods, and surgical methods.”

That definition does not include the unintentional termination of a pregnancy, but it’s unclear how a pregnant person would prove intention should they and their physician’s actions come under scrutiny. There are no exceptions for rape, incest, or danger to the life of the pregnant person.

The bill also states that unlawful termination of another’s pregnancy will not be applied to a medical practitioner or a pregnant woman when it is “based on a surgical, chemical, or medical procedure to treat a disease” and “wherein the medical practitioner or pregnant woman does not knowingly, purposely, or recklessly induce or perform an abortion if the performance of such a procedure indirectly or unintentionally results in the termination of a human pregnancy, in which the practitioner has made every effort to protect the lives of both persons.”

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It’s unclear what it would mean for the practitioner to make “every effort to protect the lives of both persons” and what that could mean for the health of the pregnant person.

Jaime Miracle with NARAL Pro Choice Ohio told WOSU that if the bill became law it could mean people who have miscarriages would be criminalized if they were in any way deemed “suspicious.”

Many pregnant people are already living under a climate of criminalization if anything goes wrong with their pregnancy. Tennessee was the first state to criminalize those who have children with symptoms of prenatal narcotics exposure. But the only result of these kinds of laws is lack of health care access for pregnant people and discrimination against low-income and marginalized people, according to a 2017 Amnesty International report.

“Across the USA, the heavy-handed policing of pregnant women’s behavior is shattering patient trust in health services with devastating consequences. These laws put pregnant women in a double bind, forcing them to choose between risking their health and risking punishment,” Carrie Eisert, Amnesty International policy adviser and author of the report, said in a statement following the report’s release. 

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A 2017 article published by The Hastings Report, a peer-reviewed journal on the subject, said more than one-third of states consider pregnant people’s illegal drug use as a form of child abuse and that laws previously intended to protect women from domestic violence during pregnancy have been turned into “vehicles for prosecuting pregnant women.” 

Under the Ohio bill, a pregnant person or abortion provider could be subject to criminal charges, including the charge of murder. They could face life in prison or the death penalty. The bill includes a provision that says the pregnant person can avoid these consequences in criminal or civil court if they are willing to be part of a hearing, provide information to investigators, or make a report. But this does not apply to health care providers performing abortions.

According to WOSU, the bill is not expected to pass this year, but it is a sign of how far Republican Ohio lawmakers are willing to go in their support of anti-abortion policies. In 2016, Ohio Gov. John Kasich (R) signed a 20-week abortion ban into law, but vetoed the heartbeat bill. Kasich has vowed to do the same again should this bill pass, but state lawmakers may have enough votes to overturn his veto.

Last week, the GOP-controlled House passed a bill called the “heartbeat abortion ban” that would ban abortions as early as six weeks — after a fetal heartbeat is usually detected. It now heads to the Senate for consideration. In the long haul, anti-abortion lawmakers and advocates hope the “heartbeat bill” will go through a legal challenge and make it to the U.S. Supreme Court, where access to abortion under Roe v. Wade could be challenged.