I submitted the following as an Op-Ed to the New York Times last week. However, it was not selected and this editorial was published instead. It should be noted that this bill has since been passed and signed by Governor Kasich, but the argument against it is still just as relevant.
Ohio has joined the ranks of states across the country in its fight against the reproductive rights of women. Although women have a constitutional right to make their own personal reproductive health choices regarding abortion, Congress and state legislatures across the country have repeatedly pressed on to infringe on these rights. Ohio is already one of these states, but the General Assembly has begun to pursue even more severe restrictions. Many have heard of the so-called “Heartbeat Bill,”1 but the Ohio Senate has actually passed an even more restrictive bill: Senate Bill 127 (S.B. 127). This measure bans all abortions after twenty weeks with one exception: a fetus endangering the health of the woman. It makes no exception, however, for rape, incest, or the mental health of the woman. The passage of this bill into law sets a dangerous precedent for us Ohioans. Not only is the law unnecessarily punitive toward physicians merely attempting to follow their Hippocratic Oath, but it also drives women back in time to the days before Roe v. Wade. This bill and others like it are a danger to the reproductive health and rights of women in the state of Ohio and must not become law.
In 1973, the United States Supreme Court decided a landmark court case, Roe v. Wade, on the constitutionality of banning abortion. In a 7-2 decision, the court ruled that a woman’s right to an abortion is protected by her constitutional right to privacy. Its ruling set forth the standard of different levels of state authority based on the trimester of the pregnancy. This precedent still stands as the basis of cases against anti-abortion laws, but was modified in 1992 when the court ruled on Planned Parenthood v. Casey. The majority opinion decided that state regulations on abortion place an “undue burden” on a woman’s right to seek an abortion because they place “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus”2. This “undue burden” precedent has stood ever since.
S.B. 127, plain and simple, places an undue burden on women seeking abortions. In order for an abortion to occur after twenty weeks of gestation, the bill states, the physician must “certif[y] in writing” that the “abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.” Further, a “different physician not professionally related” to the primary physician, must also certify in writing the same reasons. These requirements alone place an undue burden upon the woman. First, tests must be ordered to determine the likely post-fertilization age for every abortion to satisfy the requirements of the bill, costing women unnecessary money—an undue burden. The second opinion from another unrelated physician is also an extra cost to the woman for no reason other than to satisfy the requirements of the bill—yet another undue burden. The first priority of an abortion is to protect the health of the woman having the procedure. Abortion is one of the safest procedures performed in the United States. In fact, a woman is 14 times more likely to die from pregnancy and childbirth than from abortion. Yet, the bill mandates that the abortion must be performed “in the manner that provides the best opportunity for the unborn child to survive.” By thus restricting the available methods of abortion, this bill forces women and their doctors to possibly choose a less safe method of abortion, not due to the nature of the pregnancy but rather due to the nature of the law.
The decision of whether or not to have an abortion and the methods thereof should and must be decided by consultation between a woman, her physician, and whomever else she wishes to council with. This bill is clearly not about protecting public health, which is the only area of legislation where a state should intervene. The state of Ohio should have no say in this decision—one of the most difficult a woman may have to make in her life. The undue burden this bill places upon a woman’s access to abortion doesn’t end with written certifications and restricted abortion procedures, however. During the procedure, another physician must be present to “take all reasonable steps necessary” to resuscitate the aborted fetus. I cannot imagine the psychological harm such an action would inflict upon a woman. Of course a viable infant would not be neglected by a physician, but by requiring a separate physician to attempt to resuscitate the fetus regardless of its viability, this bill attempts to harm the mental health of the woman—essentially shaming her for going through with a procedure that she and her physician deemed necessary.
The notion that a twenty week old fetus is viable is utterly ridiculous. As Dr. Hal Lawrence, the executive vice president of the American Congress of Obstetritians and Gynecologists puts it: “In no way shape or form is a 20-week fetus viable. There’s no evidence of a 20-week fetus surviving, even with intensive medical care.”3 Even if the fetus were to hang on to life outside of the womb, months of intensive neonatal care would be needed at enormous expense to the mother and her insurance. Further, the claim that twenty week fetuses can feel pain has not been backed up by scientific evidence. Anti-abortion advocates claim that fetuses feel pain because they draw away from surgical instruments, but a clinical review of the evidence in the Journal of the American Medical Association shows that “Neither withdrawal reflexes nor hormonal stress responses to invasive procedures prove the existence of fetal pain.” The study further goes on to state that “fetal perception of pain is unlikely before the third trimester.” This claim of fetal pain at twenty weeks has also been disputed by the Royal College of Obstetricians and Gynaecologists along with many other well respected scientific journals.
Since it is clear that this bill is not designed to protect the health of women, nor is it designed to protect the health of the public, we must consider what the real motivation behind this legislation is. By providing no exceptions for rape, incest, or severe fetal abnormality, the sponsors of the bill obviously regard abortion as a moral wrong. Further, with no evidence of fetal viability or pain at twenty weeks, the state has no vested interest in the fetus (nor does it have the constitutional grounds to have such an interest). This is where the argument for the bill begins to fall short. Since this bill only targets abortion after twenty weeks, one could safely assume that its sponsors do not regard abortion as a moral wrong or they would attempt to outlaw it outright. But, of course, this would be unconstitutional. Thus, this bill, like the Heartbeat Bill, is merely a thinly veiled attempt to ban all abortions using loopholes within the Supreme Court’s decisions. Women do not take the decision to have an abortion—especially a late one—lightly. It is not a decision anyone would take lightly. But to make such an already difficult decision even more painful is abhorrent and a clear attack on women’s rights.
To some, the twenty week window for an abortion may seem like a reasonable cut off point for a woman’s free access to abortion. But by setting the precedent of twenty weeks, which is before fetal viability and fetal ability to feel pain, the legislature is in effect giving itself the arbitrary power to regulate the private decisions women make regarding their reproductive health. If this bill takes effect, then nothing is stopping the legislature from bringing the cutoff point closer and outright banning abortion. Further, this bill could give the legislature the audacity to regulate the reproductive rights of all citizens. If the state of Ohio has the authority to regulate the private reproductive decisions of women, then it might next think to regulate the private sexual activity of all Ohioans. It is not for the state of Ohio or any other state to regulate the private reproductive health decisions of its citizens. This precedent cannot stand.
S.B. 127 also provides for several litigious clauses against physicians who perform these types of abortions. First, the mother and father of the fetus can sue a physician for performing an abortion after twenty weeks for damages and attorney’s fees. Second, any physician who performs an abortion not abiding by this bill would have his/her medical license revoked immediately. Third, these physicians are also subject to criminal litigation and, if found guilty, can face 6-18 months in prison and a maximum fine of $5,000. But what really makes this section of the bill horrifying is the litigation fund it creates using taxpayer money to defend this unconstitutional legislation. And to top off the Unconstitutional Defense Clauses as I will deem them (Sections 2919.204-205), the bill also includes an independence clause (meaning that this bill cannot be construed to interfere with preexisting abortion law) and a severability clause (meaning that even if parts of the bill are deemed unconstitutional, the bill and other preexisting abortion laws not affected by the judicial action remain in effect). These clauses are an admission of guilt by the sponsors of this bill that it is completely unconstitutional. However, in order for the law to be struck down it must be challenged in the courts, which could take years. So while our schools and social welfare programs are severely underfunded and cut by the current Republican legislature, we can rest easy at night knowing that our tax dollars are hard at work funding a fruitless fight in the courts for legislation that restricts the reproductive rights of women.
Let’s take a step back from just this bill for a moment and look at the larger issue. What purpose do we serve by banning abortion? Does forcing women to have unwanted children foster the “family values” that Republicans are always talking about? Does an unexpected teenage pregnancy that a woman is forced to keep help her rise in the economy? “If only she would have made better choices in her life,” they say, while restricting a choice that could have helped her rise from a perpetuated abject poverty. Maybe I’m missing something, but I thought Republicans were the ones who wanted to cut the very social welfare programs whose need is perpetuated by this type of legislation. I thought Republicans were the ones who wanted less government intervention in personal affairs. Why make this exception? The answer is clear. This legislation is an attempt to impose the religious beliefs of those in the government onto the people it serves, violating one of the most sacred U.S. Constitutional values: the separation of church and state. There is a reason our founders held this principle sacred. If we do not oppose this legislation, then this too is a dangerous precedent set by the legislature, just waiting to be expanded into other facets of life.
Restrictions on abortion, like this bill, are trying to take America back to a time when abortions were illegal throughout most of the United States. A time when women would be forced to travel across the country to recieve the treatment they needed. Worse yet, women who couldn’t afford the journey would seek out illegal abortions or even perform the procedure on themselves. Illegal abortions do not follow the same safety and health procedures that make modern abortions as safe as they are. Self-abortions are even more dangerous, with women trying anything to terminate their pregnancy. By targetting physicians, S.B. 127 drives women underground for their reproductive health needs. Even if the exception is necessary and clear, with such heavy penalties why would any physician go through the extensive process needed to perform an abortion after twenty weeks? This bill’s heavy penalties—loss of medical license, 6-18 months in jail, and heavy monetary penalties through civil cases—are designed to scare doctors into refusing to perform abortions in general for fear of getting sued. If a physician performs an abortion before the twenty week deadline, then what is to stop the father or mother of the fetus from suing for quick money because the doctor missed one of the burdensome bureaucratic steps necessary to perform such an abortion? Nothing. When women are forced to seek illegal abortions, the frequency of death of the mother is significantly higher than when a safe and legal abortion is performed. Thus, this bill will not “save lives” as anti-abortion advocates like to tout. If this bill is passed, it will increase the number of deaths and injuries to women across the United States due to the increased number of illegal abortions performed. The same goes for the Heartbeat Bill. When abortion is banned, more pregnant women die.
What about the women who do not seek an illegal abortion that would have sought a legal one? Those women will be forced to carry an unwanted pregnancy to term. Women who were raped, became pregnant in high school, or simply can’t afford to have a child, will be forced to carry these children to term. For rape, the woman will be reminded every day of the worst experience of her life every time she sees the child. For high school pregnancies, a woman who could have went to college will be forced to set her ambitions aside to raise a child with the type of low-paying job that Republicans refuse to raise the minimum wage of. And for those who simply can’t afford to have a child, having another will only increase their poverty and thus their need for social welfare programs. Further, each of these types of children will likely face irreperable mental health damage from neglect, resentment, and/or abuse from parents who simply aren’t ready to have a child. And what of the health care costs of these children? If Republicans do indeed repeal the Affordable Care Act as they have promised, then the costs of healthcare will rise throughout the United States. Children are expensive. Many of the parents of these children will not be able to afford healthcare to support their children, and these children will die. Republicans can’t say that they’re imposing restrictions on abortion to protect the lives of children and also not provide adequate government assistance and healthcare. If Republicans think they can cut social programs, cut schools, cut taxes, cut affordable healthcare, and also ban abortion without perpetuating inequality and general poverty, they’re wrong. If the goal of Republicans, however, is to produce generations of neglected, emotionally disturbed, and impoverished children then they’re right on track with Senate Bill 127.
Women have a right to make their own reproductive health decisions. This includes the decision of whether or not to have a child. S.B. 127 and the Heartbeat Bill (H.B. 493) alike are dangerous steps backward for the state of Ohio. The Republicans in the Ohio General Assembly have no right to impose their religious beliefs upon citizens in the state. The provisions in this bill, and others like it, are harmful to women, their physicians, and society as a whole. This cannot stand. I cannot sit idly by as the Republicans in our legislature try to take away the basic reproductive rights of women and neither should you. I am appalled that my district’s state senator is the sponsor of this barbaric legislation. I urge you to contact your state representative and senator. Send them this essay. Make it known that Ohioans do not support restrictions on the reproductive health rights of women and neither should they. Women have fought since the founding of this country for equal rights. We cannot move backward.
https://supreme.justia.com/cases/federal/us/505/833/case.pdf. See p. 45 of the case. ↩
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