CLEVELAND, Ohio — Recent anti-abortion laws and court rulings have shifted and disrupted the legal landscape.
People are confused. So experts in law and women’s health came together on Monday to discuss the impact that last month’s Supreme Court ruling has had on the practice of healthcare law in Ohio.
In a four-hour seminar that included healthcare law experts, medical doctors, and pro-choice advocates, panels discussed the law and legal quandaries.
Here’s what they said.
One of many complications of the abortion debate is that lawmakers are defining medical terms differently than doctors.
“Ohio law doesn’t follow medicine,” said Case Western Reserve University law professor Jessie Hill. “So the definitions of things in Ohio law are not going to track the medical definitions.”
This is true for something as simple as the definition of an abortion. According to medicine, an abortion is defined as the termination of a pregnancy that has already implanted inside the uterus, explained doctor Catherine Romanos of the Women’s Medical Center in Dayton.
Medically, continued Romano, the termination of a fertilized embryo in an IVF clinic is not an abortion. Contraception — including emergency contraception — which prevents the implantation of an embryo, is not an abortion. Likewise the treatment of an ectopic pregnancy — a pregnancy where the embryo has implanted anywhere other than the uterus — is also not an abortion.
“They are separate chapters in the textbook,” said Romanos. Medically, “treating an ectopic pregnancy is not an abortion.”
However, the law, counters Hill, defines an abortion differently. Legally in Ohio, abortion is “the purposeful termination of a human pregnancy with an intention other than to produce a live birth or the removal of a dead fetus.” “That would mean that under Ohio law, ectopic pregnancies do qualify as abortions,” Hill said.
The current law specifically excludes ectopic pregnancy, Hill points out, but, in theory, if that exclusion were to be removed in future laws, ectopic pregnancies would then be subject to the same laws as abortions.
And in addition to the obvious medical contradictions, some aspects of the law are simply so vague and poorly written said Hill, that neither lawyers or doctors know exactly what it means. Take for example the legal exceptions for abortion. The current law says an abortion can be performed to save the mothers life or “prevent the substantial and irreversible impairment of a major bodily function.”
“Which again is not how doctors talk. It’s not even how good lawyers talk,” Hill said. When a doctor is facing the possibility of criminal charges, the burden of proving that continuing the pregnancy would result in the loss of life or irreversible impairments is challenging. “It doesn’t map onto medical practice in any real sense,” Hill said.
When Romanos was asked how she would handle a ban on medical abortions she responded, “I will not provide abortion medications. Doctors are rule followers. But if that happens I will be forced to practice medicine in a way that goes against my conscience.”
The idea that doctors are being forced to go against their medical judgement and act in a way they believe is contrary to the best interest of their patients was a repeated theme in the seminar.
In a real-life example, a patient in a Cincinnati hospital, whose fetus was about 20 weeks, self-administered a medical abortion and delivered the fetus alone in a hotel room. She later came to a Cincinnati hospital to be treated. Burkons, a OB/GYN and abortion provider who runs the Northeast Ohio Women’s Center and the Toledo Women’s Center, posed a slightly different hypothetical scenario. “What if she had, halfway through this procedure, panicked, and gone to the hospital, and now she was 3 centimeters dilated but still had a viable fetus?” Burkons asked. Normally, Burkons said the hospital would immediately administer medications to stop the labor. “But what if she says I don’t want that done?”
Healthcare attorney Susan Scheutzow summarized the legal conundrum. “Essentially if you do a treatment that the patient doesn’t consent to, you’re battering the patient.” “So that would force the hospital to choose between battering the patient and following the state law, and I don’t have that worked out.”
Scheutzow says that many national health law organizations are trying to educate hospitals on laws, state by state. “Hospitals are going to have to work this out so when it comes up they aren’t calling us at midnight saying, ‘What do we do’?”
Hill says the laws set up ethical dilemmas by forcing physicians to make a choice between their obligation to the patient, the oath that they took, and what is legal.
“To some extent that has been a challenge with abortion restrictions all along, but now that we have such a draconian law that cuts off the ability to provide care so early, and with such limited exceptions it has made this set of conflicts come very much into the foreground.”
In a state like Ohio, where you live, and who your local lawmakers and prosecutors are will have a profound impact on both a woman’s access to abortion care, and the likelihood that abortion providers, or advocates might be prosecuted.
National abortion protections were once able to level the playing field a little bit says Colette Ngana, chair of the board of directors at Preterm. In contrast, she says the new laws further increase health disparities.
“You’re going to have very different outcomes from city to city, county to county, state to state.” Ngana said “But in a city like Cleveland where we already know that your geography is tied to heavily to your health outcomes, I think we are just going to see these differences increase.”
For example, in all of Ohio’s 88 counties, only one county prosecutor, Cuyahoga County’s Michael O’Malley has pledged not to prosecute those who seek, assist or provide abortion care. Cleveland Mayor Justin Bibb has committed $100,000 in city funds to pay for abortion related travel expenses for its residents. And members of the Columbus City Council’s new women’s caucus announced a proposal to support abortion access in Columbus that would include a $1 million fund to limit barriers for reproductive healthcare.
But for residents in other cities and the other 87 counties, particularly those that are more rural or conservative, the outlook may be much different. Advocates say that’s one reason why it’s more important now than ever for voters to understand who their local lawmakers are and what they stand for.
And if abortion rights don’t worry you, Sarah Inkeep of the youth-led reproductive justice organization URGE says she hopes other issues will, because ultimately abortion rights are not all that’s at stake.
“If it’s not for abortion access it will be pregnancy outcomes, it will be interracial marriage it will be same sex marriage, it will be birth control. The criminalization is quite sweeping,” said Inskeep. “I don’t think any of it is off the table.”
Legal experts say there are a few things those who might seek, assist, or provide an abortion or services can feel confident about.
First, is that the current law specifically targets abortion providers, not the patients themselves.
Second, providing, obtaining or assisting someone in obtaining an abortion in another state is not a crime, so long as the abortion or service provided is legal in the state where it is performed. This includes abortion medications which must be dispensed and administered in the abortion-legal state.
Thirdly, women who need medical care after an abortion should not be afraid to get it, or to tell their doctors about their abortions. Hospitals are required by federal law to treat anyone who needs urgent care, and that includes women who have had abortions — even illegally.
Furthermore, hospital and emergency room staff should be aware that they are under no obligation to report to anyone or disclose information about their patients, including that a woman seeking care has had an abortion. As long as they did not provide the abortion, there is no legal obligation to report that an abortion took place, and hospital personnel can refuse to provide that information.
And finally, some legal general legal advice for those who might find themselves being questioned by law enforcement, or other state agency regarding an abortion. An officer may not read you your miranda rights, and those questions might seem casual and non-threatening but it is still an interrogation, said defense attorney Madelyn Grant. “There is no casual conversation with law enforcement.” If you want to end the conversation, she said the trigger word is “I want a lawyer.”
“We don’t know what these first cases are going to look like. We don’t know if it’s going to be a patient, if it’s going to be a provider, if it’s going to be a volunteer,” Grant said. “But it’s important that everyone involved in this process know their rights and how to invoke them.”
There’s a misconception that only guilty people refuse to talk to law enforcement, said Diane Menashe, legal counsel for Ice Miller. Menashe says in most cases the right course of action is to refuse to cooperate until you have a lawyer present “It’s not about wether you have something to hide,” Menashe said. “You probably don’t have a JD and you don’t know every element for every defense that you perhaps might be prosecuted for.”
If a criminal investigation were to take place, text and email messaes, browser history, location data and period trackers could all be used by the prosecution, lawyers on the panel said. However, deleting them after the fact is a bad idea. “Everything is recoverable in this day and age,” said Jenn Driscoll of the Cuyahoga Country Prosecutor’s Office. “You don’t want additional charges of tampering.”
The bottom line, said Grant: “If you don’t want someone to know about it, don’t type it in your phone.”
Much of this changing legal landscape is still unknown say the panelists, and it’s subject to change. It is unclear who prosecutors will go after and how the law will be interpreted, and until the cases are actually tried and decisions are made and appealed, those questions will remain.
“We know that a number of (Ohio) prosecutors are dying to prosecute these cases,” said Grant. “They are going to throw it all up there and see what works.”
“There’s been absolute chaos across the country on the legal front,” Hill said.
In Hill’s opinion, the problem is that the laws were written by politicians without an understanding of how they would be applied in real-world medical scenarios.
“I think that these laws were never written with the expectation that they were going to be put into effect and I don’t think that they were written to be put into effect,” Hill said. “I think theres a real danger when we have non-physicians writing rules for physicians … and backing them up with criminal penalties. I think patients are going to be paying the price and we are going to be seeing that going forward.”