Ohio

August 17, 2023 Update

The state’s upcoming special election has become a proxy war over abortion access. “Issue 1” - a Republican-backed measure that would raise the threshold for future ballot initiatives, changing the current requirement of a simple majority to a mandate that ballot measures must garner 60 percent of the vote to pass - failed at the polls on August 8. Abortion rights advocates who saw the measure as an attempt, primarily by Republicans, to essentially block a pro-abortion rights November ballot initiative resoundingly defeated Issue 1.

October 2022 Report

Summary of Current (and Most Recent) Abortion and Personhood Laws

Ohio has multiple criminal laws restricting abortion, the strictest of which is currently enjoined by a court (as explained below).
The strictest law was passed in 2019, when the Ohio Legislature adopted the Human Rights and Heartbeat Protection Act, which subjects medical providers to potential prosecution for performing abortions after the detection of a fetal heartbeat, approximately six weeks after the patient's last menstrual period. Ohio Rev. Code §§ 2919.193, 2919.195.
- A federal court enjoined the Act’s effective date until the Supreme Court’s ruling in Dobbs. PreTerm-Cleveland v. Yost, 394 F. Supp.3d 796 (S.D. Ohio 2019).
- After Dobbs, a new legal challenge was brought to the Act. On September 14, 2022, an Ohio judge granted a temporary injunction against the enforcement of the Act based on the Ohio Constitution. On Monday, September 19, 2022, the court extended the injunction to October 12, 2022.
- Notably, in his ruling, the judge declared his view that Ohio’s Constitution provides a fundamental right to an abortion.
Other Ohio laws restrict abortion by:
- Prohibiting abortion after viability, with limited exceptions for the life or health of the pregnant woman. Ohio Rev. Code § 2919.17.
- Prohibiting abortion “when the probable post-fertilization age of the unborn child is twenty weeks or greater.” Ohio Rev. Code § 2919.201.
- Prohibiting “partial birth” abortion. Ohio Rev. Code § 2919.151.
- Prohibiting abortion based on a test result or other reason indicating that the “unborn child” may have Downs syndrome. Ohio Rev. Code § 2919.10.

Potential impact of the law on and references to IVF and reproductive medicine if any

It does not appear that current abortion restrictions in Ohio will apply to IVF or other reproductive medicine services outside the context of a pregnancy.
There are no explicit references to IVF or reproductive medicine services in Ohio abortion laws.
Notably, in 2019, an Ohio appeals court held that Ohio law conferred no rights on frozen embryos prior to implantation, and thus patients could not bring wrongful death action against a hospital based on its accidental destruction of frozen embryos, even though a patients’ doctor determined the embryos to be viable prior to freezing them. The court concluded that civil and criminal statutory definitions of a person did not extend to embryos, but, rather, only to unborn human offspring developing during pregnancy. Penniman v. Univ. Hosp. Health System, 103 N.E.ed 333 (Ohio Ct. App. 2019).

Relevant definitions

“Abortion” is defined as “the purposeful termination of a human pregnancy by any person, including the pregnant woman herself, with an intention other than to produce a life birth or to remove a dead fetus or embryo.” Ohio Rev. Code § 2919.11.
“Unborn child” is defined as “an individual organism of the species homo sapiens from fertilization until live birth.” Ohio Rev. Code § 2919.16.
Ohio criminal law defines “unborn human” as “an individual organism of the species Homo sapiens from fertilization until live birth.” Ohio Rev. Code §2901.01(B)(1)(c)(i). NB: This law only applies to the termination of a pregnancy.
The definitions of “unborn child” and “unborn human” are used only in the context of abortion of a pregnancy.

Penalties for violations of the applicable abortion restrictions

A person who performs an illegal abortion may be subject to criminal and civil penalties and health care providers may be subject to disciplinary action. Ohio Rev. Code § 2919.193.

State Legislation and Reproductive Medicine

The ASRM Center for Policy and Leadership (CPL) has released reports concerning States' Abortion Laws and their Potential Implications for Reproductive Medicine. Current as of the date of publication, the reports provide an overview of states’ abortion laws, together with analysis of potential implications for reproductive medicine, including IVF.