Q&A: How will Ohio enforce the abortion limits in place right now?

Larry Burkett, of Green, (left) and Betty Sprague, of Cuyahoga Falls, hold signs outside the Northeast Ohio Women's Center in Cuyahoga Falls on Friday. Both said they support the U.S. Supreme Court decision overturning Roe v. Wade.
Larry Burkett, of Green, (left) and Betty Sprague, of Cuyahoga Falls, hold signs outside the Northeast Ohio Women's Center in Cuyahoga Falls on Friday. Both said they support the U.S. Supreme Court decision overturning Roe v. Wade. [Ryan Loew / Ideastream Public Media]

Doctors who perform abortions in Ohio after a fetal heartbeat is detected could face criminal charges. Those abortions are now banned under the 2019 Heartbeat Law that went into effect late Friday.

Morning Edition Host Amy Eddings spoke with Ideastream Public Media reporter Matt Richmond about how the state plans to enforce the law.

EDDINGS: Whenever a new law is created, the state has to set up new regulations that adhere to that law. Has the Ohio Department of Health written regulations that reflect the language of the Heartbeat Law?

RICHMOND: Yes, Gov. Mike DeWine issued an executive order late Friday ordering the Department of Health to issue the rules. So, they released them on Friday.

But they go into very little detail beyond what's in the law.

EDDINGS: Do you know for instance if clinics must perform two ultrasounds to determine if a fetal heartbeat is present? I know that there's currently one that's required on a patient's initial visit, that's currently required by law. Will there be one required on the second visit, which takes place at least 24 hours later? According to Ohio statute there's a 24-hour waiting period.

RICHMOND: The rules don't go into that level of detail. All it says is an ultrasound has to be performed prior to the abortion. And then that a record of that ultrasound has to be submitted to the Department of Health with what, part of what they're calling a "confidential abortion report."

Even the lawyers who write plain English summaries of every law passed by the Legislature point out in the summary for this law that the pre-procedure rules for doctors aren't clear.

EDDINGS: How will the state enforce this law, how will they know if a doctor has violated the fetal heartbeat ban?

RICHMOND: Any doctor who performs an abortion under the law has to place in their records and in the patient's medical file that a fetal heartbeat was not detected or that a threat to the woman's health required abortion to be performed and then has to send to a report to the Department of Health.

So, presumably, but again the law doesn't lay out what happens next, but presumably then the Department of Health could refer a doctor for prosecution.

EDDINGS: Violators can be charged with a fifth-degree felony. What is that and what kind of punishment is connected with that?

RICHMOND: It's six to 12 months in prison. It's the lowest level of felony.

But then also the state medical board can revoke the license of any doctor who's found to violate the law.

And also a patient could sue if an abortion is performed without following the rules in the heartbeat bill.

EDDINGS: Felonies are prosecuted by county prosecutors. I've been reporting today in my newscasts that Cuyahoga County Prosecutor Michael O'Malley has joined dozens of prosecutors from across the country in pledging to avoid charging those who seek or provide abortions. Can you tell me a little bit more about that?

RICHMOND: He signed onto a nationwide petition with prosecutors from around the country that said they won't use their offices to carry out these prosecutions.

He didn't say anything really publicly about what that means, just that every prosecutor's office has discretion about what cases they bring.

EDDINGS: And the letter that was signed by about 90 county and district attorneys said, "Prosecuting individuals who seek or provide abortion care makes a mockery of justice. Prosecutors should not be a part of that."

What other abortion-related bills are under consideration? I know there's a bill in both the House and Senate to ban abortion outright?

RICHMOND: That's a matching bill — House Bill 598 and Senate Bill 123 — and they're both so-called "trigger bans" that, if they had passed, would have gone into effect as soon as the Supreme Court struck down Roe.

Those also target doctors and expressly state it won't lead to charges against women. There's a higher level of felony in both those bills. It's a fourth-degree felony for doctors, which is up to two years in prison.

And then they also create a crime called "promoting abortion," which would criminalize the sale or distribution of abortion medication and then also it would criminalize advertising medications or devices that cause abortions.

EDDINGS: And do you know if this would only be for Ohio businesses that are advertising these medication abortions online? Or would this extend to out-of-state advertisements online?

RICHMOND: It's hard to tell how that will work. Criminalizing advertising is not something that I'm aware of happening in any other case. There's a lot of advocacy organizations who are advertising support for women who would be seeking either medication or traveling out-of-state. I think this bill might in part be targeting those groups.

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