A recent editorial by the Cleveland Plain Dealer:
No sooner will the count be in for Ohio’s Nov. 8 election than the General Assembly will return to Columbus. All but certain is that abortion will top the lame-duck session’s agenda in in the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision.
Net effect of that ruling: There is no constitutional right to abortion, and the states are, in practice, free to regulate abortion as they see fit. What remains to be decided is whether any legislation in Ohio will be clear, reasonable, specific and enforceable — as it needs to be to avoid undue hardship for the state’s women and girls, and to prevent dangerous and potentially life-threatening confusion and uncertainty among Ohio’s medical professionals.
Medical decisions about the life of the mother often must be made quickly in emergency situations; physicians can’t be losing critical time while weighing whether the procedures they are contemplating or performing are breaking the law.
Given the General Assembly’s anti-abortion Republican majorities, and Republican Gov. Mike DeWine’s careerlong opposition to abortion, there can be no doubt that, on the strength of the Dobbs ruling, the legislature will (further) act to limit abortion in Ohio. The question isn’t whether the General Assembly will act – it’s how.
Whatever the choices the General Assembly makes, it’s essential that Ohio legislators draw lessons from the mistakes other states have made in legislating on abortion.
One mistake is to write laws that are overly punitive. Legislating with a broad brush serves neither the foes of abortion nor those who consider it a right. Nothing would be more likely to create doubt of a law’s fairness, in the minds not only of voters but also in the minds of Ohio judges and juries, than Ohio abortion legislation that’s vague, or too broad, or too harsh.
Any legislation the General Assembly adopts must be specific about what’s permissible and what’s not – clearly specific. Likewise, any legislation must clearly confer discretion on prosecuting attorneys as to what cases to pursue, what charges to make, and what criteria to use in considering whether and when to seek convictions.
Of critical importance: The law the General Assembly passes must provide for what’s called a “rebuttable presumption” that a physician, in performing an abortion, was seeking to protect the life of the mother. That means that in an abortion case, the assumption would be that a physician correctly exercised his or her judgment. If the state alleges a physician didn’t, prosecutors would have to rebut that presumption – that is, offer evidence to contradict it.
It is critically important, too, that any anti-abortion legislation be framed in reasonable terms, no easy feat considering the emotional and ethical perspectives associated with the issue. The fact is that whether one opposes abortion or not, anti-abortion laws should not overreach.
For example, an anti-abortion law that goes to extremes would not only be unjust but would also, in the end, likely prove unenforceable – the last thing that anti-abortion voters would want. One example: Attempting to forbid Ohioans to travel out of state to obtain abortions.
Another example: Attempting to forbid Ohioans to obtain, whether in Ohio or not, contraceptive drugs and devices, including emergency contraception products. The use of pharmaceutical contraceptive products likely has increased as the number of abortions obtained in Ohio by Ohioans has steeply declined – 19,438 Ohioans obtained abortions in Ohio in 2020 versus 26,322 Ohioans in 2010, a 26% decline over ten years, according to state data.
A key aim of the General Assembly should be clarity. As a practical matter, a physician is a patient’s navigator in and through health care. But no navigator can function without maps and charts. That’s what the legislature should strive for – a clear legal itinerary for physicians whose hands a sloppily drafted law might otherwise tie. A physician wouldn’t be human if she or he didn’t fear legal liability for taking good-faith medical decisions made murky by badly drafted laws.
Another one: humane exceptions, beyond the life and health of the mother, including for young children raped by strangers or family members. Why were there such efforts to discredit the story of a 10-year-old Ohio girl repeatedly raped, other than a recognition that inflexible abortion prohibitions that prolong the harm and suffering of children could backfire and undercut trust in the law.
These, then, should be the General Assembly’s watchwords in seeking to draft abortion legislation in the wake of the Dobbs decision – Clarity. Humanity. Enforceability. And fairness.
— Cleveland Plain Dealer, July 17