Ohio Attorney General press release on abortion laws in the State
Yesterday (Sunday, July 17th), Ohio Attorney General Yost issued a press release1 clarifying the law.
Readers of my previous articles will see that I was very accurate in my navigation of this issue compared to the rest of the media coverage. To my knowledge I was the only one pointing out that there was no “six week” law to be “three days” over. The press release reaffirms “There is no gestational time limit in Ohio’s heartbeat law.”
The rest of the press release involves what I covered in detail two days ago (Saturday, July 16th). Unfortunately, the Attorney General’s press release does not clear up the issue I raised.
I wrote, dissecting the law
“Serious risk of the substantial and irreversible impairment of a major bodily function” appears to have wording that would cover Yost’s claims. After all, the girl is 10 years old, and pregnancy could very well cause “substantial and irreversible impairment of a major bodily function.” However, the list of inclusions comes after the words “medically diagnosed condition.”
I don’t know if “being 10 years old” constitutes a medically diagnosed condition, and the inclusions, even with the words “but not limited to” do not appear give one an obvious understanding that “being 10 years old” qualifies.
AG Yost tries to address my statements in the press release
Please note that the list of conditions is an illustration, and more conditions that otherwise meet the definition may be applicable to determining "medical emergency."
That’s fine, but the sentence immediately following makes the above ambiguous again
Whether these exceptions apply to a particular case depends on the facts of that case.
This press release had two goals. The first goal is to correct the false reporting that claimed Ohio has a “six week” law. That’s fairly trivial to do. That law does not exist, and the “heartbeat” law that does exist does not contain any measure of time.
The second goal was to justify his claim that even if a heartbeat were detected in this specific case the exceptions would have covered it. That next sentence leaves this goal unmet. “Whether these exceptions apply to a particular case depends on the facts of that case” is precisely what you (the AG) were supposed to be helping illuminate!
That sentence says that the exceptions applying to a particular case requires somebody’s judgement. Whose judgement? There are multiple layers.
The first layer would be the legal counsel the doctor would be consulting, using their best understanding to protect their client from a charge of felony of the 5th degree.
For a felony of the fifth degree, the prison term shall be a definite term of six, seven, eight, nine, ten, eleven, or twelve months.
The first layer, the legal counsel of the doctor, would be basing their guidance on the expected actions of the second layer, which would be whether someone with the ability to charge their client, would be inclined to do so. Legal counsel, seeing that the best the Attorney General can say is that “it’s circumstantial,” are going to advise their client against the action. Legal counsel, acting in the best interest of their client, is going to be extremely risk averse. They are going to advise against any action where its legality is not clear cut.
The second layer, having “exceptions apply to a particular case depend[ing] on the facts of that case,” is going to have full short term judgement in this situation. They will decide what facts determine if the section applies retroactively. Eventually, they will find out what the third layer’s, the courts, judgement is.
The courts would have the ultimate judgement call, someday.
A doctor’s legal counsel is not going to want their client to be a guinea pig for this experiment. They’re going to want some sense of assurance that nobody is even going to imagine prosecuting, before they advise such a thing. Being charged at all, even if eventually acquitted, is too high a cost for their client.
Over time, there will be case law and guidance issued that will be clearer - but for the moment the press release does not actually clear up exactly what is to be expected from the “including but not limited to” section of the exceptions in law. Maybe there will be wide latitude granted where the doctor’s judgement is given great weight. It’s conceivable that courts would approach it with the lens of violations being void for vagueness2. It’s just not obvious. I would expect legal counsel to advise their clients to not perform the procedure in many circumstances where the average citizen would conceptualize as a “medical emergency”, until better clarity is obtained.