Ohio Proposes New Felony Offense – Abortion Murder/ April 20, 2020
Lawmakers in Ohio want to charge women with murder if they have an abortion. Under a newly proposed law, a woman could potentially face up to 15 years in an Ohio state prison for terminating a pregnancy. Doctors who perform abortions could also face charges for murder. The bill marks one of the most aggressive attempts to make abortion illegal in the nation.
Understanding Ohio’s Murder Statute
Murder is a type of homicide. Homicide refers to the act of one person killing another. Homicide can be lawful and unlawful. Murder falls under the category of unlawful homicide. In Ohio, murder is defined in ORC § 2903.02 to mean “purposely caus[ing] the death of another or the unlawful termination of another’s pregnancy.”
So, in Ohio, murder requires that the act of causing another’s person death is purposeful. Purposeful means that you acted with the specific intent to cause a certain result. Here, that would be to cause another person to die.
Under the current law, it is not a crime for a woman to terminate her own pregnancy. It’s also not a crime for a doctor to perform a legal abortion. Legal abortion is one that is performed before gestation reaches 20 weeks (or 22 weeks after the woman’s last period). HB 413 would change that.
Breaking Down HB 413
House Bill 413 (HB413) proposes to amend the state’s penal code to “create the capital offense of aggravated abortion murder and the offense of abortion murder.”
Abortion murder would create and be codified in ORC § 2904.03(A). Under that section, it would be a felony for a person “purposely, and with prior calculation and design, perform or have an abortion.” We know that “purposely” means. It means engaging in behavior with the specific intent to cause a particular outcome.
What does “prior calculation and design” mean, though? Under Ohio law, it is defined to mean “there must have been sufficient time and opportunity for the planning of an act of homicide, and the circumstances surrounding the homicide must show a scheme designed to carry out the calculated decision to cause the death.” So, prior calculation and design means that a woman must have thought about getting an abortion and terminating the pregnancy before acting. It can’t be a spontaneous decision.
Under Ohio’s current abortion requirements, all abortions would have to be classified as having been the result of prior calculation and design. Women are required to receive counseling and then wait at least 24 hours before having the procedure. However, should this bill pass, the requirements would no longer be necessary, as all abortions would be illegal.
Aggravated Abortion Murder
HB413 also creates an aggravated form of abortion murder. Aggravated abortion murder would create and be codified in ORC § 2904.03(B). Under that section, it would be a crime to “purposely perform 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.”
So, in the off-chance that a woman is committing a serious crime and decides, in that moment, to terminate her pregnancy, she could face charges for aggravated abortion murder.
The proposed law would also make it unlawful for a woman who is in an Ohio detention center to have an abortion.
Additionally, there would be no statute of limitations for prosecuting a woman or doctor under §2904.03.
Ohio Lawmakers Claim the Law is Aimed at Doctors, Not Women
Ohio State Rep. Candice Keller is a sponsor of HB413. According to a spokesperson for the Representative, “the intent of the bill is towards the doctors, it’s not toward punishing the women that are going through these crisis situations.”
However, the text of the bill itself doesn’t seem that indicate that this is true. As written, the new abortion murder law would apply to anyone who “perform[s] or ha[s] an abortion.” Doctors perform abortions. Pregnant women have abortions. So, it is unclear what the spokeswoman was referring to in her statement.
Under HB413, a Woman Could Be Sentenced to Life in Prison For Terminating a Pregnancy
As currently written, there are no exceptions for terminations in the instance of rape or incest, nor to protect the life, safety, or health of the mother. The law plainly states that purposely having an abortion, when the result of prior planning and calculation, is considered murder. Under the state’s sentencing laws, a pregnant woman or doctor who pleads guilty or is convicted on abortion murder charges would face between 15 years and life in prison.
If convicted for aggravated abortion murder, the death penalty would be on the table.
Is HB413 Constitutional?
In its current form, the answer is most likely no. In Roe v. Wade, the United States Supreme Court held that a pregnant woman has the right to choose whether or not to have an abortion without excessive governmental interference.
During the first trimester, it’s a woman’s choice, entirely. During the second trimester, a state government can impose “regulations on abortion that are reasonably related to maternal health.” The Ohio law, as proposed, clearly flies in the face of the law, as interpreted by the Supreme Court of the United States.
However, thanks to an increasingly conservative bench, there is a chance that Roe v. Wade will be overturned, in full or in part. That could pave the way for laws like HB413. For now, however, expect for HB413 to face vigorous opposition in the courts – if it ever makes it to the governor’s desk, that is.