Ohio House Bill 565: Is Extending the Death Penalty to Women’s Exercise of Their Constitutional Right to Abortion Going Too Far?

PC: https://www.cnn.com/2018/11/21/us/ohio-abortion-ban-bill-criminal-law-trnd/index.html.

By: Erica Rebussini

Ohio House Bill 565: Is Extending the Death Penalty to Women’s Exercise of Their Constitutional Right to Abortion Going Too Far?

Debates on abortion and the death penalty have respectively gained their own traction in our current political climate. While the criminalization of abortion is not a new concept[1], Ohio House Bill 565 treads into the realm of punishment by death.[2]

The new bill redefines “person” to include “unborn humans,” which effectively qualifies abortion as murder in Ohio.[3] Should this bill pass, it will serve as a predicate for sentencing of murder convictions in Ohio, the penalty for which is death.

While our country has long fostered debates about the criminalization of abortion[4], HB 565 will ultimately extend the death penalty to those who choose to have abortions. In the past, penalties were directed at doctors or people who performed the abortions.[5] This decision was influenced by the difficulties of prosecuting women who had abortions; issues such as lack of proof and witnesses were detrimental to the survival of those cases[6]. Now, women who choose to have the abortion are specifically targeted and will be garmented with the title of the accused.[7]

The goal of HB 565 is to protect the unborn by deterring abortions[8], but it will pull the death penalty abreast in ways we haven’t really seen before. The death penalty has normally been attributed to those whom the law has deemed unsafe to remain in society and incapable of rehabilitation.[9] But research has shown that criminalizing abortion on the penalty of death does not actually deter abortion.[10] The best way to reduce abortion is to prevent unintentional pregnancies through modern contraception.[11] So why are politicians posturing themselves this way?

A relevant consideration in evaluating the Bill’s expansion of the death penalty is that there are currently no exceptions written into the Bill for abortions in cases of danger to the mother’s life, rape, or incest.[12] The only exception is for abortions which are the unintended result of another procedure.[13]

This proposed legislation begs us not only to consider how far we are willing to extend capital punishment with respect to the future of the death penalty, but also the probable impact on litigation that a bill of this nature would have.

Since our jurisprudence recognizes a constitutional right to abortion[14], it is likely that constitutional debates will follow these measures. Laws that restrict abortion have been ruled unconstitutional in Ohio subsequent to suits brought by the ACLU[15]. As this law, in essence, would restrict abortion by imposing the death penalty on those who choose to have an abortion, it is likely to face strong opposition.

It is no secret that politics drive the crafting of our laws[16], and it isn’t realistic to think that our debates on abortion and the death penalty will end in the near future. The Ohio legislature is in a position of control over the trajectory of Death Penalty Law. If this bill passes, Ohio is looking at a much grander scale of those eligible for the death penalty. The targeted class of people is more voluminous than the typical demographic of death row, and the exercise of their constitutional right would be the stimulant for their punishment.

 

[1] Livia Gershon, The History of Outlawing Abortion in America, JSTOR Daily (Mar. 10, 2017) https://daily.jstor.org/the-history-of-outlawing-abortion-in-america/.

[2] H.B. 565, 132nd Cong. (2018).

[3] H.B. 565, 132nd Cong. (2018).

[4] Livia Gershon, The History of Outlawing Abortion in America, JSTOR Daily (Mar. 10, 2017) https://daily.jstor.org/the-history-of-outlawing-abortion-in-america/.

[5] U.S. Abortion History, Abort73 https://abort73.com/abortion_facts/us_abortion_history/ (last visited Nov. 24, 2018).

[6] U.S. Abortion History, Abort73 https://abort73.com/abortion_facts/us_abortion_history/ (last visited Nov. 24, 2018).

[7] U.S. Abortion History, Abort73 https://abort73.com/abortion_facts/us_abortion_history/ (last visited Nov. 24, 2018).

[8] AJ Willingham, A Proposed Ohio Law Would Redefine a Person to Include ‘Unborn Humans’ and Could Treat Abortion Like Murder, CNN (Nov. 21, 2018, 5:46 PM), https://www.cnn.com/2018/11/21/us/ohio-abortion-ban-bill-criminal-law-trnd/index.html.

[9] James Fieser, Capital Punishment, From Moral Issues That Divide Us, U. Tenn., https://www.utm.edu/staff/jfieser/class/160/7-cap-pun.htm

[10] William Wan, Amid New Talk of Criminalizing Abortion, Research Shows the Dangers of Making it Illegal For Women, Washington Post, (Apr. 5, 2018) https://www.washingtonpost.com/news/to-your-health/wp/2018/04/05/amid-new-talk-of-criminalizing-abortion-research-shows-dangers-for-women/?utm_term=.0784b35251bf.

[11] William Wan, Amid New Talk of Criminalizing Abortion, Research Shows the Dangers of Making it Illegal For Women, Washington Post, (Apr. 5, 2018) https://www.washingtonpost.com/news/to-your-health/wp/2018/04/05/amid-new-talk-of-criminalizing-abortion-research-shows-dangers-for-women/?utm_term=.0784b35251bf.

[12] Chantal Da Silva, Ohio Considering Bill That Could See Abortions Punishable By Death, Newsweek (Nov. 20, 2018, 10:27 AM) https://www.newsweek.com/ohio-considering-bill-could-see-abortions-punishable-death-1224078.

[13] Chantal Da Silva, Ohio Considering Bill That Could See Abortions Punishable By Death, Newsweek (Nov. 20, 2018, 10:27 AM) https://www.newsweek.com/ohio-considering-bill-could-see-abortions-punishable-death-1224078.

[14] Roe v. Wade, 410 U.S. 113 (1973).  

[15] Mark Taylor, You Paid For It: Ohio Defends Abortion Restriction Laws, NBC4 (Mar. 29, 2018, 6:12 PM) https://www.nbc4i.com/news/local-news/you-paid-for-it-ohio-defends-abortion-restriction-laws/1087811588.

[16] William Wan, Amid New Talk of Criminalizing Abortion, Research Shows the Dangers of Making it Illegal For Women, Washington Post, (Apr. 5, 2018) https://www.washingtonpost.com/news/to-your-health/wp/2018/04/05/amid-new-talk-of-criminalizing-abortion-research-shows-dangers-for-women/?utm_term=.0784b35251bf.

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