Bill Text: OH HB7 | 2011-2012 | 129th General Assembly | Introduced

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Bill Title: To revise the criminal laws governing post-viability abortions.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2011-01-11 - To Health & Aging [HB7 Detail]

Download: Ohio-2011-HB7-Introduced.html

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As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 7

Representative Fende 

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A BILL

To amend sections 2305.11, 2307.52, and 2919.16, to

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enact new sections 2919.17 and 2919.18, and to

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repeal sections 2919.17 and 2919.18 of the Revised

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Code to revise the criminal laws governing

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post-viability abortions.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2305.11, 2307.52, and 2919.16 be	6
amended and new sections 2919.17 and 2919.18 of the Revised Code	7
be enacted to read as follows:	8

Sec. 2305.11.  (A) An action for libel, slander, malicious	9
prosecution, or false imprisonment, an action for malpractice	10
other than an action upon a medical, dental, optometric, or	11
chiropractic claim, or an action upon a statute for a penalty or	12
forfeiture shall be commenced within one year after the cause of	13
action accrued, provided that an action by an employee for the	14
payment of unpaid minimum wages, unpaid overtime compensation, or	15
liquidated damages by reason of the nonpayment of minimum wages or	16
overtime compensation shall be commenced within two years after	17
the cause of action accrued.	18

(B) A civil action for unlawful abortion pursuant to section	19
2919.12 of the Revised Code, a civil action authorized by division	20
(H) of section 2317.56 of the Revised Code, a civil action	21
pursuant to division (B)(1) or (2) of section 2307.51 of the	22
Revised Code for performing a dilation and extraction procedure or	23
attempting to perform a dilation and extraction procedure in	24
violation of section 2919.15 of the Revised Code, and a civil	25
action pursuant to division (B)(1) or (2) of section 2307.52 of	26
the Revised Code for terminating or attempting to terminate a	27
human pregnancy after viability in violation of division (A) or	28
(B) of section 2919.17 of the Revised Code shall be commenced	29
within one year after the performance or inducement of the	30
abortion, within one year after the attempt to perform or induce	31
the abortion in violation of division (A) or (B) of section	32
2919.17 of the Revised Code, within one year after the performance	33
of the dilation and extraction procedure, or, in the case of a	34
civil action pursuant to division (B)(2) of section 2307.51 of the	35
Revised Code, within one year after the attempt to perform the	36
dilation and extraction procedure.	37

(C) As used in this section, "medical claim," "dental claim,"	38
"optometric claim," and "chiropractic claim" have the same	39
meanings as in section 2305.113 of the Revised Code.	40

Sec. 2307.52.  (A) As used in this section:

41

(1) "Frivolous conduct" has the same meaning as in section	42
2323.51 of the Revised Code.	43

(2) "Viable" has the same meaning as in section 2919.16 of	44
the Revised Code.	45

(B)(1) A woman upon whom an abortion is purposely performed	46
or induced or attempted to be performed or induced in violation of	47
division (A) of section 2919.17 of the Revised Code has and may	48
commence a civil action for compensatory damages, punitive or	49
exemplary damages if authorized by section 2315.21 of the Revised	50
Code, and court costs and reasonable attorney's fees against the	51
person who purposely performed or induced or attempted to perform	52
or induce the abortion in violation of division (A) of section	53
2919.17 of the Revised Code.	54

(2) A woman upon whom an abortion is purposely performed or	55
induced or attempted to be performed or induced in violation of	56
division (B) of section 2919.17 of the Revised Code has and may	57
commence a civil action for compensatory damages, punitive or	58
exemplary damages if authorized by section 2315.21 of the Revised	59
Code, and court costs and reasonable attorney's fees against the	60
person who purposely performed or induced or attempted to perform	61
or induce the abortion in violation of division (B) of section	62
2919.17 of the Revised Code.	63

(C) If a judgment is rendered in favor of the defendant in a	64
civil action commenced pursuant to division (B)(1) or (2) of this	65
section and the court finds, upon the filing of a motion under	66
section 2323.51 of the Revised Code, that the commencement of the	67
civil action constitutes frivolous conduct and that the defendant	68
was adversely affected by the frivolous conduct, the court shall	69
award in accordance with section 2323.51 of the Revised Code	70
reasonable attorney's fees to the defendant.	71

Sec. 2919.16.  As used in sections 2919.16 to 2919.18 of the	72
Revised Code:	73

(A) "Fertilization" means the fusion of a human spermatozoon	74
with a human ovum.	75

(B) "Gestational age" or "gestation" means the age of an	76
unborn humanchild as calculated from the first day of the last	77
menstrual period of a pregnant woman.	78

(C) "Health care facility" means a hospital, clinic,	79
ambulatory surgical treatment center, other center, medical	80
school, office of a physician, infirmary, dispensary, medical	81
training institution, or other institution or location in or at	82
which medical care, treatment, or diagnosis is provided to a	83
person.	84

(D) "Hospital" has the same meanings as in sections 3701.01,	85
3727.01, and 5122.01 of the Revised Code.	86

(E) "Live birth" has the same meaning as in division (A) of	87
section 3705.01 of the Revised Code.	88

(F) "Medical emergency" means a condition that a pregnant	89
woman's physician determines, in the physician's good faith and in	90
the exercise of reasonable medical judgment, based upon the facts	91
known to the physician at that time, so complicates the woman's	92
pregnancy as to necessitate the immediate performance or	93
inducement of an abortion in order to prevent the death of the	94
pregnant woman or to avoid a serious risk of the substantial and	95
irreversible impairment of a major bodily function of the pregnant	96
woman that delay in the performance or inducement of the abortion	97
would create.	98

(G) "Physician" has the same meaning as in section 2305.113	99
of the Revised Code.	100

(H) "Pregnant" means the human female reproductive condition,	101
that commences with fertilization, of having a developing fetus.	102

(I) "Pregnancy" means the condition of being pregnant.

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(J) "Premature infant" means a human whose live birth occurs	104
prior to thirty-eight weeks of gestational age.	105

(J)(K) "Serious risk of the substantial and irreversible	106
impairment of a major bodily function" means any medically	107
diagnosed condition that so complicates the pregnancy of the woman	108
as to directly or indirectly cause the substantial and	109
irreversible impairment of a major bodily function, including, but	110
not limited to, the following conditions:	111

(1) Pre-eclampsia;

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(2) Inevitable abortion;

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(3) Prematurely ruptured membrane;

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(4) Diabetes;

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(5) Multiple sclerosis. A medically diagnosed condition that	116
constitutes a "serious risk of the substantial and irreversible	117
impairment of a major bodily function" includes pre-eclampsia,	118
inevitable abortion, and premature rupture of the membranes, may	119
include, but is not limited to, diabetes and multiple sclerosis,	120
and does not include a condition related to the woman's mental	121
health.	122

(K)(L) "Unborn humanchild" means an individual organism of	123
the species homo sapiens from fertilization until live birth.	124

(L)(M) "Viable" means the stage of development of a human	125
fetus at which in the determination of a physician, based on the	126
particular facts of a woman's pregnancy that are known to the	127
physician and in light of medical technology and information	128
reasonably available to the physician, there is a realistic	129
possibility of the maintaining and nourishing of a life outside of	130
the womb with or without temporary artificial life-sustaining	131
support.	132

Sec. 2919.17.  (A) No person shall purposely perform or	133
induce or attempt to perform or induce an abortion on a pregnant	134
woman when the unborn child is viable.	135

(B)(1) It is an affirmative defense to a charge under	136
division (A) of this section that the abortion was performed or	137
induced or attempted to be performed or induced by a physician and	138
that the physician determined, in the physician's good faith	139
medical judgment, based on the facts known to the physician at	140
that time, that either of the following applied:	141

(a) The unborn child was not viable.

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(b) The abortion was necessary to prevent the death of the	143
pregnant woman or a serious risk of the substantial and	144
irreversible impairment of a major bodily function of the pregnant	145
woman.	146

(2) No abortion shall be considered necessary under division	147
(B)(1)(b) of this section on the basis of a claim or diagnosis	148
that the woman will engage in conduct that would result in the	149
woman's death or a substantial and irreversible impairment of a	150
major bodily function of the woman or based on any reason related	151
to the woman's mental health.	152

(C) Except when a medical emergency exists that prevents	153
compliance with section 2919.18 of the Revised Code, the	154
affirmative defense set forth in division (B)(1)(a) of this	155
section does not apply unless the physician who performs or	156
induces or attempts to perform or induce the abortion performs the	157
viability testing required by division (A) of section 2919.18 of	158
the Revised Code and certifies in writing, based on the results of	159
the tests performed, that in the physician's good faith medical	160
judgment the unborn child is not viable.	161

(D) Except when a medical emergency exists that prevents	162
compliance with one or more of the following conditions, the	163
affirmative defense set forth in division (B)(1)(b) of this	164
section does not apply unless the physician who performs or	165
induces or attempts to perform or induce the abortion complies	166
with all of the following conditions:	167

(1) The physician who performs or induces or attempts to	168
perform or induce the abortion certifies in writing that, in the	169
physician's good faith medical judgment, based on the facts known	170
to the physician at that time, the abortion is necessary to	171
prevent the death of the pregnant woman or a serious risk of the	172
substantial and irreversible impairment of a major bodily function	173
of the pregnant woman.	174

(2) Another physician who is not professionally related to	175
the physician who intends to perform or induce the abortion	176
certifies in writing that, in that physician's good faith medical	177
judgment, based on the facts known to that physician at that time,	178
the abortion is necessary to prevent the death of the pregnant	179
woman or a serious risk of the substantial and irreversible	180
impairment of a major bodily function of the pregnant woman.	181

(3) The physician performs or induces or attempts to perform	182
or induce the abortion in a hospital or other health care facility	183
that has appropriate neonatal services for premature infants.	184

(4) The physician who performs or induces or attempts to	185
perform or induce the abortion terminates or attempts to terminate	186
the pregnancy in the manner that provides the best opportunity for	187
the unborn child to survive, unless that physician determines, in	188
the physician's good faith medical judgment, based on the facts	189
known to the physician at that time, that the termination of the	190
pregnancy in that manner poses a greater risk of the death of the	191
pregnant woman or a greater risk of the substantial and	192
irreversible impairment of a major bodily function of the pregnant	193
woman than would other available methods of abortion.	194

(5) The physician certifies in writing the available method	195
or techniques considered and the reasons for choosing the method	196
or technique employed.	197

(6) The physician who performs or induces or attempts to	198
perform or induce the abortion has arranged for the attendance in	199
the same room in which the abortion is to be performed or induced	200
or attempted to be performed or induced at least one other	201
physician who is to take control of, provide immediate medical	202
care for, and take all reasonable steps necessary to preserve the	203
life and health of the unborn child immediately upon the child's	204
complete expulsion or extraction from the pregnant woman.	205

(E) For purposes of this section, there is a rebuttable	206
presumption that an unborn child of at least twenty-four weeks	207
gestational age is viable.	208

(F) Whoever violates this section is guilty of terminating or	209
attempting to terminate a human pregnancy after viability, a	210
felony of the fourth degree.	211

(G) The state medical board shall revoke a physician's	212
license to practice medicine in this state if the physician	213
violates this section.	214

(H) Any physician who performs or induces an abortion or	215
attempts to perform or induce an abortion with actual knowledge	216
that neither of the affirmative defenses set forth in division	217
(B)(1) of this section applies, or with a heedless indifference as	218
to whether either affirmative defense applies, is liable in a	219
civil action for compensatory and exemplary damages and reasonable	220
attorney's fees to any person, or the representative of the estate	221
of any person, who sustains injury, death, or loss to person or	222
property as the result of the performance or inducement or the	223
attempted performance or inducement of the abortion. In any action	224
under this division, the court also may award any injunctive or	225
other equitable relief that the court considers appropriate.	226

(I) A pregnant woman on whom an abortion is performed or	227
induced or attempted to be performed or induced in violation of	228
division (A) of this section is not guilty of violating division	229
(A) of this section or of attempting to commit, conspiring to	230
commit, or complicity in committing a violation of division (A) of	231
this section.	232

Sec. 2919.18.  (A) Except in a medical emergency that	233
prevents compliance with this division, no physician shall perform	234
or induce or attempt to perform or induce an abortion on a	235
pregnant woman after the beginning of the twenty-second week of	236
gestation unless, prior to the performance or inducement of the	237
abortion or the attempt to perform or induce the abortion, the	238
physician determines, in the physician's good faith medical	239
judgment, that the unborn child is not viable, and the physician	240
makes that determination after performing a medical examination of	241
the pregnant woman and after performing or causing to be performed	242
those tests for assessing gestational age, weight, lung maturity,	243
or other tests that a reasonable physician, in making a	244
determination as to whether an unborn child is viable, would	245
perform or cause to be performed.	246

(B) Except in a medical emergency that prevents compliance	247
with this division, no physician shall perform or induce or	248
attempt to perform or induce an abortion on a pregnant woman after	249
the beginning of the twenty-second week of gestation without first	250
entering the determination made in division (A) of this section	251
and the associated findings of the medical examination and tests	252
in the medical record of the pregnant woman.	253

(C) Whoever violates this section is guilty of failure to	254
perform viability testing, a misdemeanor of the fourth degree.	255

(D) The state medical board shall suspend a physician's	256
license to practice medicine in this state for a period of not	257
less than six months if the physician violates this section.	258

Section 2.  That existing sections 2305.11, 2307.52, and	259
2919.16 and sections 2919.17 and 2919.18 of the Revised Code are	260
hereby repealed.	261