Blog for Choice Day: The Dire State of the States

This year’s Blog for Choice Day theme is to contemplate what the electoral gains of the anti-choicers will mean for “choice” this year. I’m sure other bloggers will ponder the damage liable to be wrought by our virulently anti-choice new Congress. For my part? I think most of the mischief will occur at the state level, where a new crop of reactionary leaders will exploit the abortion issue to pander to their base.

Take Ohio. (Please! Or at least, deliver me from our new “leadership.”) With John Kasich, we now have a blithering idiot as a governor. He’s so far right that if the earth were flat, he’d tumble off  its right edge. We have a completely Republican legislature. The anti-choicers are emboldened. And they’ve already made their first move.

Modernesquire at Plunderbund reports that one of our Democratic (!) legislators, Lorraine Fende, has introduced a bill that she and the media are framing as a ban on all late-term abortions. As Modernesquire notes, Ohio already has a law in place that prohibits “partial-birth abortions”: Ohio Revised Code 2919.151.

Modernesquire (who unlike me, is an actual lawyer) suggests that the late-term ban is redundant with ORC 2919.151, except in one crucial respect:

It potentially criminalizes all abortions.  H.B. 7 enacts a new section 2929.17 that makes the performance of any abortion in which the fetus is arguably “viable” a fourth-degree felony.  “Viable” is defined under the bill as:

“the stage of development of a human fetus at which in the determination of a physician, based on the particular facts of a woman’s pregnancy that are known to the physician and in light of medical technology and information reasonably available to the physician, there is a realistic possibility of the maintaining and nourishing of a life outside of the womb with or without temporary artificial life-sustaining support.”

The statute also creates a rebuttable presumption that any fetus at 24-weeks gestational age is viable.  But note that the statute does not create a converse rebuttable presumption that any fetus before 24-weeks ISN’T viable.  The bill declares the issue of the viability of the fetus to be an affirmative defense.  What does that mean?  It means that the State has no burden to proof that a fetus was viable to criminally prosecute a doctor under this provision, even in instances that don’t involve a late-term abortion.  Instead, the doctor has the burden at trial to convince a criminal jury unanimously that the fetus was not viable, or that the abortion was necessary to protect the life of the mother, or to protect from serious and irreversible impairment of the pregnant woman’s medical health.

If a doctor carries the burden of proof to show that the fetus was not viable, this bill would surely have a chilling effect. It would be still be pointless for a prosecutor to pursue first trimester abortions, but what’s to stop him from questioning the viability of a 20-week-old fetus? An 18-week-old fetus? Second-trimester abortions.

In criminal cases the burden typically falls on the state to prove the defendant’s guilt beyond a reasonable doubt. Here, the burden of proof is reversed in a stunning disregard for basic principles of jurisprudence. Modernesquire again:

Normally, affirmative defenses are things in the criminal law in which the law recognizes that the Defendant committed a crime, but holds that certain factors require the Defendant to not be held culpable for the crime such as insanity and self-defense.  In this instance, however, it takes what should be a major element for the State to have to prove beyond a reasonable doubt and forces the accused to prove the negative instead.  Such element shifting can only be by design to encourage prosecutions against any abortion provider.

Yes. Furthermore, this “element shifting” constructs second-trimester abortions as presumptively illegal. It essentially says that any abortion within the latter part of the second trimester is assumed to be a crime – unless proven otherwise.

With all due respect to Modernesquire’s legal smarts, I do notice a difference between the proposed bill (House Bill 7) and the existing law. They don’t appear to be entirely redundant, because existing law is limited to a single procedure (which it charmingly terms “feticide.”) ORC 2919.151 explicitly distinguishes between dilation and extraction (aka “partial-birth abortion”) and other techniques; it explicitly exempts dilation and evacuation, another late-term technique that is often an implicit target of restrictions on “partial-birth abortions”:

This section does not prohibit the suction curettage procedure of abortion, the suction aspiration procedure of abortion, or the dilation and evacuation procedure of abortion.

House Bill 7 is silent on these other procedures. It does not exempt any particular procedures. It appears to broaden the scope of the earlier “partial-birth” ban to any technique used in the second trimester – and even to those, like suction curettage, which are used only for early abortions!

Fende’s bill contains another little bombshell: it significantly narrows the health exemption for late-term abortions. Where the law previously included multiple sclerosis and diabetes as conditions that impose a “serious risk of the substantial and irreversible impairment of a major bodily function” and thus permit abortion late in pregnancy, now those two diseases are downgraded: they may be included among such conditions, but they’re clearly ranked lower than preeclampsia, which isn’t saddled with such a qualifier:

A medically diagnosed condition that constitutes a “serious risk of the substantial and irreversible impairment of a major bodily function” includes pre-eclampsia, inevitable abortion, and premature rupture of the membranes, may include, but is not limited to, diabetes and multiple sclerosis, and does not include a condition related to the woman’s mental health. [my emphasis]

In what appears to be a very substantial change, mental health would never qualify as a reason for late-term abortion. Where Fende invokes the image of a woman cavalierly choosing to abort at 8 1/2 months, my imagination conjures up a woman struggling with psychosis – a woman in acute danger of ending her own life. We are not talking about a woman who’s having a lousy day, feeling a tad blue, and flips a coin: an abortion or a pedicure as a quick pick-me-up? Hmm, if I get the abortion, I can paint my own toes??

Oh, and in any case where the fetus could be remotely considered viable, H.B. 7 mandates that the doctor performing the termination get a written certification from a second physician that abortion was medically necessary. The only exception would be for dire, acute emergencies.

The Columbus Dispatch reports that some Ohio lawmakers want to tinker with H.B. 7 to define a fetus as potentially viable all the way back to 20 weeks. As far as I know, no fetus born at 20 weeks has yet survived. For those of us who get ambiguous test results during the 19th week (as I did in my second pregnancy) and need to pursue further testing to learn what we’re up against, a 20-week deadline would be a nightmare. It would trigger precipitous decisions to abort in some instances, while potentially criminalizing those who choose termination after additional tests.

I’d like to close with some comforting words about how this bill doesn’t stand a chance. But you know, the Statehouse leadership saw fit to introduce this bill among its first ten. The Repubs are making it a priority. It’s sponsored by a Democrat. And Governor Kasich is shaping up as the kind of guy who’ll make G.W. Bush appear intelligent, humane, and pro-feminist.

If by some miracle this bill flounders, it’ll only be a matter of weeks before the anti-choicers launch their next salvo.

And that’s just my adopted state of Ohio. My purportedly purple state. I cringe to think of what will happen in those states that are even more retrograde.