Does Ohio’s Abortion Ban Have a Rape Exception?

After Roe v. Wade was overturned, Ohio's law reportedly forced a 10-year-old rape victim to travel to Indiana for an abortion.

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Image via Becker1999 from Grove City, OH/Wikimedia Commons

Claim

As of July 2022, Ohio’s law banning abortions for people who have been pregnant for six weeks or longer has an exception for victims of rape.

Rating

Fact Check

In late June 2022, after the U.S. Supreme Court overturned the 1973 Roe v. Wade ruling that legalized abortions nationwide, Ohio outlawed abortions for people who have been pregnant for six weeks or longer. Soon after, in July, several news outlets reported that Ohio’s law forced a 10-year-old girl who had gotten pregnant by rape to travel to the neighboring state of Indiana to legally terminate the pregnancy.

Many people, including politicians and members of the media, questioned the veracity of the story. We reached out to its source, an Indianapolis-based OBGYN, and we did not receive a response. About a week after the story went viral, a 27-year-old man was jailed and charged with raping the girl, according to reputable news outlets.

As news of that arrest circulated online, a rumor surfaced claiming that Ohio’s abortion law would have actually allowed the girl to legally terminate the pregnancy in that state — in other words, she supposedly could have avoided the trip to Indiana for an abortion. For instance, Glenn Greenwald, a journalist and lawyer, stated in a tweet thread, “Ohio has a rape exception in its law…”

But that was not the case. Ohio’s law banning abortions for people who have been pregnant for six weeks or longer did not make an exception for rape victims, as of July 2022. For that reason, we rated this claim “False.”

The false claim stemmed from a July 11 Fox News segment featuring Ohio’s Attorney General Dave Yost. In that interview, Yost claimed that the 10-year-old rape victim could have actually sought treatment in Ohio because of that law’s fine print.

However, in his comments, Yost did not explicitly claim that the law had an exception for rape victims; that rumor appeared to be a result of people’s misinterpretation of his remarks regarding the law’s perimeters. He said on Fox News:

Ohio’s heartbeat law has a medical emergency exception broader than just the life of the mother. This young girl, if she exists, and if this horrible thing actually happened to her — breaks my heart to think about it — she did not have to leave Ohio to find treatment.

What does Ohio’s law actually state, as of mid-July 2022? According to the law, the ban does not apply to pregnant people — no matter the length of their pregnancy — if/when physicians believe an abortion would prevent death or serious physical harm to those patients.

In other words, as the law states, a physician “who performs a medical procedure that, in the physician’s reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman,” is a physician operating legally.

We reached out to Yost’s office to ask if, or to what extent, that language or any other exceptions in the law apply to rape victims. In response, the office shared a document with us titled, “Explainer Regarding Ohio’s Heartbeat Law Exceptions.” That statement, which also appeared on the office’s website, read:

The statute contains three exceptions, though they are not labeled as such: one to prevent the death of the mother, the second, due to a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant mother, and the third in cases of an ectopic pregnancy. 

But what would constitute as a “serious risk” to a “major bodily function?” The attorney general’s explainer defined that to mean:

[…] any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function. A medically diagnosed condition that constitutes a “serious risk of the substantial and irreversible impairment of a major bodily function” includes preeclampsia, inevitable abortion, and premature rupture of the membranes, may include, but is not limited to, diabetes and multiple sclerosis, and does not include a condition related to the woman’s mental health.

The guidance continued, “Whether these exceptions apply to a particular case depends on the facts of that case.”

As far as the 10-year-old rape victim, it was unknown if, or to what extent, the exceptions to Ohio’s law would have allowed her to legally terminate the pregnancy in the state.

Aaron Blake, a writer for the Washington Post, wrote in a July 14 analysis of the statute and attorney general’s statements that it was “certainly conceivable that a prosecutor would decide or a court would rule that this case would qualify for that second exception” — in reference to the exception for pregnant people who could risk serious physical harm giving birth because of her young age. 

Elizabeth Nash, a researcher with Guttmacher Institute, also weighed in, arguing that Yost’s claim that the child could have legally obtained an abortion in her home state downplayed the impact of Ohio’s ban. Furthermore, from Nash’s point of view, the law’s ambiguous language to describe exceptions to the ban created challenges for providers and patients.

Maria Phillis, an OB-GYN in Ohio, told the Ohio Capitol Journal that, from her read, the state’s abortion ban made two exceptions for the health of the pregnant person. For one, she said, physicians can legally perform abortions in emergency situations, like when patients are “imminently bleeding out on the table, or having a stroke or cardiac arrest.” In those cases, they would ask themselves, ‘”if I don’t do something right now, somebody’s going to suffer death or severe consequences.”

The other exception would apply to less urgent situations: when physicians determine that birth would risk a pregnant person experiencing “substantial and irreversible impairment of a major bodily function.” That can happen no matter a pregnant person’s age, she said.

“Pregnancy itself overall is a risk for anyone who enters it,” Phillis said. “It completely alters the broad physiology of the body. It alters the heart function. […] It alters kidney function. It alters a number of different body systems and folks that have preexisting disease or complications are at a higher risk of bad outcomes.”

While children and teenagers who are pregnant certainly face a different set of risks compared to adults, Phillis said determining a patient’s risk happens on a case-by-case basis.

As far as the 10-year-old mentioned above, she said, it’s hard to say whether her age would “put her at a higher risk than other conditions, say chronic hypertension, chronic diabetes.”

Court records in Franklin County, Ohio, indicated the suspect in the 10-year-old’s case was arraigned on July 13 on charges of raping a child under the age of 13, a felony, and was being held on $2 million bond at Franklin County Correctional Center in Columbus. He was due back in court for a preliminary hearing on July 22, as of this writing.

Sources:

“Analysis | What Ohio Abortion Law Says about a 10-Year-Old Rape Victim.” Washington Post. www.washingtonpost.com, https://www.washingtonpost.com/politics/2022/07/14/what-ohio-law-says-about-10-year-old-rape-victim-abortion/. Accessed 18 July 2022.

“Did Ohio’s Abortion Ban Force a 10-Year-Old Rape Victim to Travel to Indiana?” Snopes.Com, https://www.snopes.com/news/2022/07/05/abortion-10-year-old-rape-victim-ohio/. Accessed 18 July 2022.

Geidner, Chris. “Jeff Crossman Wants to Protect Abortion Rights — but Needs to Defeat Ohio AG Dave Yost First.” Law Dork, with Chris Geidner, 14 July 2022, https://chrisgeidner.substack.com/p/jeff-crossman-wants-to-protect-abortion. Accessed 18 July 2022.

Helmore, Edward. “10-Year-Old Rape Victim Forced to Travel from Ohio to Indiana for Abortion.” The Guardian, 3 July 2022. The Guardian, https://www.theguardian.com/us-news/2022/jul/03/ohio-indiana-abortion-rape-victim. Accessed 18 July 2022.

“Ohio Attorney General on Lack of Investigation into Alleged Child Rapist: ‘Not a Whisper.’” Fox News, http://video.foxnews.com/v/6309391986112/. Accessed 18 July 2022.

“Ohio Attorney General’s Office Issues Legal Explainer Regarding Heartbeat Law.” Ohio Attorney General Dave Yost. https://www.ohioattorneygeneral.gov/Media/News-Releases/July-2022/Ohio-Attorney-General-s-Office-Issues-Legal-Explai. Accessed 18 July 2022.

“Patients Head to Indiana for Abortion Services as Other States Restrict Care.” Indystar, https://www.indystar.com/story/news/health/2022/07/01/indiana-abortion-law-roe-v-wade-overturned-travel/7779936001/. Accessed 18 July 2022.

Schladen, Marty, et al. “Docs Dispute AG’s Claim That Ohio Law Allows 10-Year-Olds to Get Abortions.” Ohio Capital Journal, 15 July 2022, https://ohiocapitaljournal.com/2022/07/15/docs-dispute-ags-claim-that-ohio-law-allows-10-year-olds-to-get-abortions/. Accessed 18 July 2022.

“Section 2919.195 – Ohio Revised Code.” Ohio Laws. https://codes.ohio.gov/ohio-revised-code/section-2919.195. Accessed 18 July 2022.

Twitter, https://twitter.com/eliznash/status/1547691848054874112. Accessed 18 July 2022.

“Where Is Abortion Legal or Banned? A State-by-State Guide After Roe v. Wade Reversal.” Snopes.Com, https://www.snopes.com/news/2022/07/06/us-abortion-law-state-by-state__trashed/. Accessed 18 July 2022.