A New Ohio Law Could Require Public Records of Abortions

CLEVELAND – Over the weekend, Ohio Republican Gov. Mike DeWine signed into law Senate Bill 27, which specifies requirements for the final disposition of fetal remains from a surgical abortion.

Under the new bill, after an abortion, Senate Bill 27 requires any fetal tissue from a surgical abortion to be buried or cremated. Prior to the procedure, the patient will be informed that she can choose a location for the remains. Should she not choose one, the provider would have to choose and pay for burial or cremation. Not following these steps could result in a first-degree misdemeanor charge.

Mike Gonidakis, president of Ohio Right to Life, told the Associated Press that the new law is a “vital piece of pro-life legisation. Human life is precious and deserves to be both respected and protected.”

Opponents say these new requirements increase the costs of abortion and create new burdens on patients and providers. As in other states with similar laws, either patients or providers would absorb the new cost of disposing of the fetal remains. The ACLU of Ohio’s chief lobbyist Gary Daniels wrote in his December 3, 2020, testimony that the bill is “nothing more than legislative harassment,” given that it only applies to surgical abortions and not medical abortions, miscarriages, stillbirths, or embryos disposed of by fertility clinics. “SB 27 is yet another hurdle, yet another expense, yet another attempt to shame those who seek abortions,” Daniels wrote.

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But the new law in Ohio could also dangerously create a public record of everyone in the state who chose to have an abortion. If officials at the Ohio Department of Health require a death certificate for the aborted fetus, that information could be available to anyone who seeks it. The records could be used to initiate targeted harassment toward women who received abortions, and serve as a warning to anyone contemplating the option.

The text of the new bill does not go into specifics about whether it will require a death certificate, but it does not expressly waive that step, either. The Ohio Department of Health has final say on how the law will be implemented, said Laurel Powell, spokesperson for Planned Parenthood of Greater Ohio. It is set to take effect 90 days from the governor’s signing.

The Ohio Department of Health has not yet responded to a request for comment.

“We will have to go through a complicated period of regulatory requests to more deeply understand exactly how this will affect our clinic, patients, and staff,” said Chrisse France, executive director of Preterm, a Cleveland abortion provider. “This law wasn’t written with the goal of creating real regulations, but with the goal of closing clinics. We often have to file lawsuits and request regulatory guidance from the state on how to implement laws.”

In Pennsylvania, where lawmakers approved similar legislation last year for the disposition of feal remains, the legislation requires death certificates for miscarriages, abortions, and even fertilized eggs that don’t implant in the uterus. Not doing so could result in fines and 30 days in prison, though lawmakers claimed that identifying information about the woman would remain confidential. However, Christine Castro, an attorney for the Women’s Law Project, told Vice that this was misleading. The Pennsylvania legislation doesn’t mandate a death certificate (which would be a public record) but does mandate a burial permit. Under Pennsylvania law, “you need a death certificate to obtain a burial permit,” she said.

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The Ohio code appears to differ. The fetal remains bill states that “a crematory operator is not required to secure a death certificate, a burial or burial-transit permit, or a cremation authorization form to cremate fetal remains.” But even if the crematory doesn’t need a death certificate, the Department of Health could still require patients or providers to obtain one.

Other states, including Texas, Louisiana, and Arkansas, have similar fetal remains laws on the books, but have been blocked from implementation by court injunctions. A similar law in Indiana, signed by then-Gov. Mike Pence, was upheld in 2019 by the Supreme Court. In December 2020, an Indianapolis abortion clinic sued the state once again.

The law’s opponents also point to the legislation’s religious overtones. The National Council of Jewish Women advises that “laws requiring medical providers to arrange for the burial or cremation of fetal remains compromise religious liberty and moral autonomy.”

Cleveland abortion provider Preterm works closely with patients to meet “their emotional and spiritual needs,” France said. “This law will take that fundamental choice away from patients, and put it into the hands of politicians. Not all our patients have the same spiritual needs, and this law creates a standard based on certain sects of Christianity that not all of our patients are rooted in.”

She added, “The cost is not just financial—the costs of laws that restrict abortion access are public misinformation, stigma, and fear.”

“This law wasn’t written with the goal of creating real regulations, but with the goal of closing clinics.”

According to The Cincinnati Enquirer, this new law was “prompted” by a state investigation—commissioned when DeWine was attorney general—that explored false allegations that Planned Parenthood was selling fetal tissue in Ohio. Claims about Planned Parenthood selling fetal tissue have spurred these laws nationwide, though critics contend the goals are not to stop those sales to researchers but to add burdens to abortions.

The law also comes after Gov. DeWine signed a state “heartbeat bill” in 2019 that bans abortion as early as six weeks into a pregnancy. There are exceptions to save the life of a woman, but none for rape or incest. The bill would punish doctors with felony charges for performing abortions. Similar legislation is pending in nearly a dozen other states and has passed in several more, though implementation is tied up in litigation.

Advocates say that, even as this bill crosses the governor’s desk, Republicans are already looking to the next: Senate Bill 260, a “telemedicine abortion ban” that would ban virtual consultation for a medication abortion and require physicians be physically present. Both bills were introduced over a year ago, and then rushed through at the end of the lame-duck legislative session. SB 260 was passed at 11 at night, Powell said. The very next bill the legislature took up after SB 260 expanded telemedicine access for other forms of health care. The governor has yet to sign it.

“These bills are putting additional cost barriers in front of patients,” Powell said. “They’re putting additional regulatory barriers in front of us providers. It’s really unfortunate that they would choose to attack health care in the middle of a pandemic like this.”

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