COLUMBUS, Ohio (WCMH) – Ohioans decidedly voted to protect access to abortion in the state on Tuesday, but the Ohio Revised Code may complicate the realization of that vision.

With the projected passage of Issue 1, Ohio has established the right to abortion in the state constitution. Pre-viability bans on the procedure will be prohibited, and any prohibition on abortion after viability cannot apply when a physician determines the pregnant person’s life or health is at risk.

The amendment will take effect in 30 days.

Abortion rights advocates and anti-abortion activists agree that the crown jewel of Ohio’s abortion restrictions, the six-week ban, is undoubtedly in conflict with the language of Issue 1. But even with the six-week ban’s eventual demise, a suite of statutory and administrative regulations will continue to restrict access to the procedure – at least for the near future.

More than three dozen laws regulate – and often work to restrict – abortion in Ohio. Those laws include a parental consent requirement for minors seeking the procedure, a law that opponents of Issue 1 repeatedly claimed would be struck down under the amendment. Other restrictions include limits on who can provide abortions, in what facilities, and in what manners, as well as informed consent requirements, post-abortion procedures and prohibitions on state funding for the procedure.

In a policy analysis released in the weeks before Nov. 7, Attorney General Dave Yost claimed many laws would “probably be invalidated” under the amendment’s requirement that the state would need to defend any pre-viability regulations as important to advancing the health of the pregnant person.

“The long-recognized interests in fetal life or in medical ethics cannot be protected, making the laws previously upheld on those grounds no longer valid, even if the interests rise to the level of ‘compelling,’” Yost wrote.

Dan Kobil, a law professor at Capital University who specializes in constitutional law and supported the amendment, agreed that the constitutionality of any restriction would hinge on whether it serves to protect the health of the pregnant person. But he disagreed with Yost’s analysis, saying the only law that would be struck down “with certainty” is the six-week ban.

In any case, Kobil noted, the process for striking down laws is a slow one. Any law would have to be challenged in court and would likely make its way to the Ohio Supreme Court for final review, a process that can take years.

There’s also the matter of the makeup of the high court, Kobil said. Several justices have made public statements opposing abortion, and Justice Joe Deters is named in the challenge to the state’s six-week ban as the then-Hamilton County Prosecutor.

“I think any physician or reproductive rights organization would think long and hard before taking any close questions up to this Ohio Supreme Court,” Kobil said.

Restrictions on abortion providers

Many laws in the Ohio Revised Code work as a network of restrictions on abortion providers. Like in Michigan, only physicians can perform the procedure in Ohio, for example. Physicians are also the only medical professionals authorized to dispense abortion medications to patients and must administer the first dose in person.

Abortion facilities are considered ambulatory surgical centers under Ohio law, subjecting them to a slate of administrative regulations. Abortion clinics must enter into transfer agreements with local hospitals should patient complications arise, but public hospitals – like the Wexner Medical Center at Ohio State, for instance – cannot enter such agreements. Clinics can also receive a variance from the Department of Health to enter into an agreement with a physician who has admitting privileges at a hospital within 25 miles.

Providers also have strict requirements for reporting data to the state, including on the number of abortions and “attempted abortions” performed, detailed information about any complications and demographic information about abortion patients. Certain things must also be included in abortion patients’ medical records, including whether fetal cardiac activity was detected, whether a viability test was performed and, in cases of post-viability abortions, whether a medical condition necessitated the procedure. Sanctions on providers range from automatic medical license suspensions to felony charges.

Should any restriction on abortion providers be challenged under the amendment, Kobil said, the state will have to produce data or research on how it protects the life or health of the pregnant woman. But he noted that many provider restrictions were upheld when a federal right to the procedure was recognized, and he does not expect courts to move away from the status quo. 

“If it is a true protection that is necessary to protect health, even if it burdens an abortion provider, I don’t think that most courts would have any difficulty upholding such regulations,” Kobil said. 

Restrictions on the procedure – before, during and after

The Heartbeat Act is best-known for its prohibition on abortions after fetal cardiac activity can be detected, or around six weeks gestation, but it is a group of laws that impact the procedure in multiple ways.

A component that remains in effect even as the six-week ban is held up in court is the requirement that a physician must check for the presence of fetal cardiac activity – and offer the pregnant person the ability to see or hear the heartbeat. 

After detecting fetal cardiac activity, the physician must notify the pregnant person in writing and inform them of the “statistical probability” of carrying the pregnancy to term. The pregnant person must affirm in writing that they received such notification and must wait 24 hours before they can undergo the procedure.

More than a half-dozen statutes make up the Heartbeat Act, with each provision carrying a potential $20,000 penalty for physicians who violate it.

In 2011, former Gov. John Kasich signed a post-viability abortion ban into law, with exceptions to preserve the life of the pregnant person or prevent permanent impairment of a major bodily function. Such a determination must be corroborated by a second physician who does not work with the physician providing the abortion, and the procedure must be performed “in a manner that provides the best opportunity for the unborn child to survive.”

Ohio law also bans what it calls “dismemberment” and “partial-birth” abortions on living fetuses, known by medical professionals as dilation and evacuation and dilation and extraction abortions, respectively. They are most commonly performed in the second and third trimesters, and under Ohio law, can only occur once the fetus has been injected with medication to stop its heart.

A federal ban on “partial-birth” abortions without first stopping the fetal heart has been in effect since 2007, after being upheld by the U.S. Supreme Court. At the time, the American College of Obstetricians and Gynecologists said dilation and extraction was the safest type of abortion performed in the second trimester.

Another series of laws dictates the disposal of fetal remains. Ohio law has banned the sale of or experimentation on aborted fetal remains since shortly after Roe v. Wade was decided in 1973. 

In 2021, Gov. Mike DeWine signed into law the requirement that aborted fetal remains must be cremated or buried. Providers must ask the abortion patient which disposal method she prefers, although she is not required to make such a determination.

Providers are responsible for the cost of disposal unless the abortion patient wishes for the remains to be disposed of at another location. All aspects of the disposal must be included in the patient’s medical record, and providers must maintain a list of locations that provides or arranges for the final disposition of fetal remains.

What is the current status of abortion in Ohio?

With the state’s six-week ban on hold, abortion is currently legal through 21 weeks gestation, or 21 weeks after the first day of a pregnant person’s last menstrual cycle. Medication abortion is available through 10 weeks gestation.

Ohio has nine abortion clinics spread across the state’s urban areas, with three providing only medication abortions. Of clinics that do provide abortion procedures, three provide the procedure up until the legal limit, with others offering it until 15 to 19 weeks gestation.

About 20,600 abortions were performed in Ohio in 2022, according to the Ohio Department of Health. Nearly three-quarters of abortions occurred within nine weeks gestation. About half a percent of abortions – or 113 – occurred after 21 weeks.

Data from the Society of Family Planning and the Guttmacher Institute suggest that the rate of abortions has not rapidly increased but has recovered from a significant drop in the month or so that Ohio’s six-week ban was in effect.