Would Ohio’s Abortion Law Have Allowed The 10 Year Old Rape Victim To Get An Abortion Under The Exception For Medical Necessity?

The recent story of a 10 year old Ohio rape victim having to travel to Indiana to procure an abortion has made forced birthers squirm. The first squirming was to claim the story was a fabrication. Dave Yost, Ohio’s Attorney General, denied the victim existed. Yost arrrogantly asserted that if she did exist he would know about it and since he didn’t it was almost certainly a hoax. That narrative embarrassingly tumbled apart when the rapist was arrested.

So Attorney General Yost turned to a new narrative. Yost insisted that due to a “medical emergency exception” in Ohio’s antiabortion law, the pregnant fourth grader could have procured the abortion in Ohio. This article will evaluate whether Yost is correct. I shall do so now, for a theoretical identical case, considering Yost’s statements, that the healthcare provider in prior case would NOT have had when making the decision.

I shall do in the form of a mock memorandum from the counsel of the healthcare provider who has asked me to advise them on whether it is legally safe to perform such an abortion on a hypothetical patient today. So here goes.

MEMORANDUM OF OPINION

Client: The client is a healthcare provider licensed to practice medicine in Ohio and qualified to perform the abortion on the patient.

Patient: The patient is a ten year old pregnant rape victim seeking an abortion. The patient is just past her sixth week of term and a “fetal heartbeat” (as defined by the law) is detectable.

Question of Law: Does the medical necessity exception to Ohio’s law generally banning abortion provide a legally confident basis that the client can perform the abortion without risk of legal penalty?

Short Answer: No. As explained below, both the language of the statute and interpretive guidance, suggests the medical necessity exception does not apply. Performing the abortion will place the client at high legal risk of criminal prosecution, civil liability, and disciplinary action against their medical license.

Relevant Statutes: Ohio Revised Code 2919.193 establishes a felony for performing an abortion after a fetal heartbeat is detectable. The law also allows a civil action and disciplinary action against the healthcare provider’s medical license. However, the statute provides an exception “if the physician believes that a medical emergency, as defined in section 2919.16” of the ORC applies.

§ 2919.16F defines a medical emergency as “a condition that in the physician’s good faith medical judgment, based upon the facts known to the physician at that time, so complicates the woman’s pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function.”

In subsection K concerns for a woman’s mental health are expressly excluded as a basis to apply the medical necessity exception.

Statutory Language Analysis: There is nothing in the statutory language that suggests age of the mother alone qualifies for the medical emergency exception. At best it is a factor that could be considered when a physician evaluates whether the patient is at risk. If the mother’s age alone is to be regarded as the basis for the emergency exception to apply, at what age is that line drawn? The statute provides no guidance at all.

More concerning, the “immediate performance” requirement reflected in the emphasized language of the definition is very problematical. The physician’s good faith medical judgement must be that the abortion is immediately necessary to protect the patient from death or serious impairment. That the physician believes the pregnancy is very likely to eventually pose such a risk simply is not a basis for the abortion to be performed now. The physician must wait until the patient’s condition deteriorates sufficiently to create an immediate risk to the patient to justify the abortion. While this seems to demand deliberately waiting to place the patient in this dangerous situation, that medical absurdity is what the text of the law demands.

Interpretive Guidance: The above analysis is strongly supported by an interpretation, on this exact question, from the Ohio Legislative Service Commission (LSC). The LSC is a “a nonpartisan agency providing the Ohio General Assembly with drafting, research, budget and fiscal analysis, training, and other services.” A legislator asked the LSC whether the medical necessity provision would allow minor victims of sexual assault to receive abortions after six weeks gestation. The answer was a stunningly direct, “no.” The LSC explained that “Ohio’s abortion prohibition applies regardless of the circumstances of conception or the age of the mother.” A court is likely to regard this statement as very persuasive when evaluating the legislative intent of the abortion ban statute.

Statement of Ohio Attorney General Yost: In apparent conflict with the statutory language, and the LSC’s interpretation above, Ohio Attorney General Yost publicly stated the emergency exception would apply to a ten year old rape victim. His statements were flippant and off the cuff in a press conference. What the Yost said is not reflected in a formal legal opinion from his office, and Yost arguably made them for political expediency without studying the specifics of the statutory language. If such study did happen, Yost certainly did not address the specifics of the language when making his assertion. Under the circumstances, Yost’s statement should be given little legal weight. Even if they reflect a genuine intent by the State Attorney General’s Office to not criminally prosecute such cases, that would not preclude a local prosecutor from prosecuting under the apparently more sound legal theory. Nor would it preclude the civil liability or licensure action initiated by private parties the statute allows.

Conclusion: Is it conceivable a court would support a physician’s judgement that an abortion for the client was justified by Ohio’s medical necessity exception? Yes, however there is also a high risk the court would not do so. The statutory language and interpretive guidance, places any healthcare provider at high risk of potential criminal, civil, and licensure action. The uncertainty of the currently vague statutory regime suggests use of the medical necessity exception is generally fraught with legal risk. The hesitancy of healthcare providers to act quickly on behalf of patients is well justified and may well itself endanger patient care. I too fear a statutory regime that will require healthcare providers to run emergency situations through legal counsel. However, the law is that it is. As your counsel I must advise you to do what is most legally sound. For reasons explained, I do not regard this issue, for this patient, as a close call and I advise against performing the abortion.