Snatching Death from the Jaws of Life

The core of HB 565 (and yes, I reviewed all 284 pages of it, and dozens of cross-references to current Ohio law) is to change the definition of “person” under Ohio criminal law to include ALL unborn humans, regardless of viability. (Ohio already gives viable unborn babies full rights under its criminal law today.) It erases the language that immunizes mothers from criminal prosecution if they give consent to abortion. It would allow criminal prosecution of mothers based on any action, attempt, or even threat to take action that could endanger the life or health of her unborn child. The effect of these changes is to apply the full force of homicide law to both mothers and medical professionals, including the potential death penalty for any person who “purposely, and with prior calculation and design, cause[s] the death of another.”

It would erase all exceptions for abortions performed because continued pregnancy would endanger the life of the mother, which is the only type of abortion that is allowable using Medicaid, ACA exchange-subsidized plans, state employer-sponsored plans, or other state funds under current Ohio law. The sole “exception” recognizing any right to life for the mother is a medical procedure to treat disease which “indirectly and unintentionally results in the termination of a human pregnancy and in which the medical practitioner has made every effort to protect the lives of both persons.”

This bill would incentivize citizens to report on each other for involvement in illicit abortion. It provides extensive whistleblower protections, even prohibiting “harsh language” towards an employee for reporting on suspected abortions. It states that anyone other than a medical practitioner involved who makes a report, provides information during investigation, or participates in a hearing concerning the provision or procurement of an abortion “shall not be subject to civil or criminal penalties.” It is not clear whether this immunity only applies to the provision of information that might otherwise violate laws like HIPAA or private wiretapping prohibitions, or whether it would immunize a mother from homicide prosecution if she cooperates with authorities—or an intimate partner from domestic abuse charges for reporting a suspected abortion, for that matter.

It is disturbing to think of the consequences if legislation like HB 565 actually could be implemented as law. An abusive intimate partner could use evidence of a miscarriage to threaten a woman with prosecution for murder. Since even a threat to harm an unborn child could be punishable as a lesser felony, abusers could make false reports in order to control or punish pregnant women. Women with ectopic and other life-threatening pregnancies would die if they couldn’t get treatment in another state. Women without access to good legal counsel, especially those who are poor, immigrants, or minors with abusive family members, could end up imprisoned for having a miscarriage, premature birth, or child with birth defects, as happens already in countries like El Salvador. The Ohio legislation would go even further than that because the death penalty is a theoretical possibility, and much further than the recently-rescinded Irish “ban” that allowed abortions by foreign-sourced prescription drugs or to save the life of the mother.

“Calm down,” I’ve seen many pro-lifers say on social media. “This isn’t mainstream pro-life legislation.” “The Supreme Court would never allow it.” While these two sentences are probably true in the present, there is still good reason to be very alarmed that this legislation has been introduced and has 18 legislators backing it. To understand why, we need to delve into the theory of the Overton Window.

This theory was developed about 15 years ago by Joe Overton of the conservative Mackinac Center for Public Policy. In a nutshell, it holds that public policy happens within a window of acceptable discourse, and that politicians have to stay in that window in order to stay in office. In order to move public policy toward aims outside that window, non-elected influencers like think tanks and other advocacy groups need to push hard promoting ideas that are currently thought radical or even completely unacceptable. By taking ideas that were unthinkable and making them seem acceptable in society, they shift the Overton Window in that direction. What was previously radical now becomes mainstream, and what was once acceptable towards the other end of a spectrum now becomes radical or even unthinkable.