Medical Emergencies Under Ohio's Heartbeat Law
We are receiving dozens of questions about Ohio’s Heartbeat law in response to online assertions that Ohio’s heartbeat law will make it illegal to resolve an ectopic pregnancy or to perform surgical intervention in the case of a woman who has suffered a miscarriage or other medical emergency. Neither of these assertions is true and citations to the opposite are at best dangerously misinformed and at worst intentionally fabricated to manipulate the emotions and distort the discussion about abortion – the discussions about abortion that the Dobbs case rightfully returned to state legislatures and the citizens themselves.
Discussion of this issue is also complicated because we often do not define terms. Abortion can have different meanings in different contexts. For example, in the medical field, “abortion” generally means any pregnancy that does not result in a live birth. Sometimes the words “spontaneous” or “induced” or “inevitable” are applied to differentiate. We’ve received many calls from women who are heartbroken or infuriated to learn that their miscarriage is reflected in their medical report as a “natural” or “spontaneous” abortion. When we talk about abortion in the field of ethics, we often refer to a direct action intentionally taken to end a known pregnancy. Legal definitions vary from place to place and are often a combination of the two concepts. This adds confusion to a complicated issue, for sure. While there are numerous examples of medical terminology and ethical terminology and legal terminology differing from each other and the common use of those same words in our everyday life, it certainly adds to the difficulty that we have in discussing abortion.
So, let’s talk about how abortion is defined in Ohio’s law and show why assertions that Ohio’s laws on abortion do not allow for intervention in medical emergencies, miscarriages, and ectopic pregnancies are incorrect.
First of all – take a look at Ohio’s definition of abortion. It can be found here: https://codes.ohio.gov/ohio-revised-code/section-2919.11.
2919.11 says, “As used in the Revised Code, "abortion" means the purposeful termination of a human pregnancy by any person, including the pregnant woman herself, with an intention other than to produce a live birth or to remove a dead fetus or embryo. Abortion is the practice of medicine or surgery for the purposes of section 4731.41 of the Revised Code.”
This is how Ohio law defines abortion – not just in the chapter or the section, but everywhere in Ohio’s revised code. This automatically means that in Ohio surgical intervention in the case of a miscarriage is not defined as an abortion. This also means that if a woman is in a medical emergency and doctors take emergency efforts with the intent to save her life – that still is not an abortion under Ohio law, even if the baby does not survive.[i]
The exception is clarified over and over again in Ohio law, including in the so-called “Heartbeat” provisions. There are several sections that deal with the heartbeat standard, but the one that is helpful here is 2919.193. Specifically, section B states, “(B) Division (A) of this section does not apply to a physician who performs or induces the abortion if the physician believes that a medical emergency, as defined in section 2919.16 of the Revised Code, exists that prevents compliance with that division.”
So then we go to 2919.16, which is linked above, and to line F, which says:
“(F) "Medical emergency" means a condition that in the physician's good faith medical judgment, based upon the facts known to the physician at that time, so complicates the woman's pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create.”
But don’t close out your tab to 2919.16 yet, we’ll come back to it in a minute.
At this point, we’ve covered surgical resolution of miscarriage and responses to medical emergencies for mom. So now, let’s turn to ectopic pregnancy.
We’ve gotten good at knowing to define things, so first - what is an ectopic pregnancy? An ectopic pregnancy is a pregnancy that implants outside of the uterus – usually in the Fallopian tubes. As many as 2% of all pregnancies are ectopic. Some will resolve on their own, but others will need medical intervention. When the baby develops in a place like the Fallopian tube, it will eventually rupture. The baby will not survive, and the mom is also at high risk of serious complication and death.
There are three ways an ectopic pregnancy is generally treated. Two are surgical and one is non-surgical. None of these are considered abortions under Ohio law. Not only are they just different procedures, but even if they were defined as abortions they would be a response to a medical emergency. They also more than likely would fall under section K of 2919.16 (we said to keep your tab open!). That section adds some clarification to what a medical emergency consists of, and it says:
(K) "Serious risk of the substantial and irreversible impairment of a major bodily function" means 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 pre-eclampsia, 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.”
If you are still worried, Ohio also specifically exempts termination of an ectopic pregnancy from its prohibitions related to funding abortions in section 5106.51, which includes:
“(F) Nothing in this section denies reimbursement for drugs or devices to prevent implantation of the fertilized ovum, or for medical procedures for the termination of an ectopic pregnancy.”
There simply is zero reason to scare women into believing that in Ohio or anywhere else, overturning the Dobbs decision is going to result in women being prohibited from life-saving medical treatment due to an ectopic pregnancy or any other medical emergency or from removing an unborn but already deceased baby from a mother’s uterus. And history shows that is true – women with miscarriages beyond Ohio’s past gestational abortion limits have been able to receive surgical intervention after miscarriage and stillbirth.
Perhaps we need to ask – why is the crowd that is demanding publicly funded abortion on demand at all stages of pregnancy trying to tell you that Dobbs means that pregnant women in Ohio (and elsewhere) will be denied medical treatment in the case of medical emergencies? This is pure scare-tactic sensationalism designed to instill anger, fear, and hatred.
You don't need to respond to every instance that someone is wrong on the internet. Sometimes it is better just to keep on scrolling or to reach out privately and let them know that the content they shared is misleading, but if you get into a discussion and need some facts to overcome fear - here you go.
[i] One example used a lot here is pre-eclampsia. If a woman is in physical danger from pre-eclampsia, the medical intervention to save her life is to deliver the baby. Baby should be provided appropriate emergency care, but we also know it may not be possible to survive depending on its general condition, gestation, etc. This is completely different than inserting surgical instruments into the uterus to dismember and suction out the baby’s remains. This is a principle that is widely established in medicine and ethics called “Double Effect.”