As Introduced 1
123rd General Assembly 4
Regular Session H. B. No. 351 5
1999-2000 6
REPRESENTATIVES LUEBBERS-JERSE-JORDAN-GARDNER-HARTNETT-BUEHRER- 8
CALVERT-CALLENDER-JACOBSON-TIBERI-MYERS-ROMAN-WINKLER-KRUPINSKI- 9
CLANCY-KREBS-NETZLEY-HOUSEHOLDER-CAREY-METZGER-HARRIS-MAIER- 10
CATES-MOTTLEY-GRENDELL-FLANNERY-LOGAN-BRADING-TAYLOR-WILLAMOWSKI- 11
HOOPS-TRAKAS-BUCHY-VERICH-YOUNG-SCHULER-VAN VYVEN-AMSTUTZ-HOOD- 12
SULZER-EVANS-DePIERO-JOLIVETTE-WILLIAMS-PADGETT-HAINES-STAPLETON- 13
COUGHLIN-SCHURING-BATEMAAN-AUSTRIA-KILBANE-CORE-SCHUCK 14
_________________________________________________________________ 15
A B I L L
To amend sections 2305.11, 2901.01, and 2903.09, to 17
enact sections 2307.53 and 2919.151, and to 18
repeal sections 2307.51 and 2919.15 of the
Revised Code to create the offense of partial 19
birth infanticide, to allow specified persons to 20
commence a civil action for damages when a child 21
is killed by partial birth infanticide, and to
repeal the prohibition against performing a 22
dilation and extraction procedure on a pregnant
woman and the related civil action. 23
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 25
Section 1. That sections 2305.11, 2901.01, and 2903.09 be 27
amended and sections 2307.53 and 2919.151 of the Revised Code be 29
enacted to read as follows:
Sec. 2305.11. (A)(1) Subject to division (A)(2) of this 39
section, an action for libel, slander, malicious prosecution, or 40
false imprisonment, an action for malpractice other than an
action upon a medical, dental, optometric, or chiropractic claim, 41
or an action upon a statute for a penalty or forfeiture shall be 42
commenced within one year after the cause of action accrues, 43
2
provided that an action by an employee for the payment of unpaid 44
minimum wages, unpaid overtime compensation, or liquidated 45
damages by reason of the nonpayment of minimum wages or overtime 46
compensation shall be commenced within two years after the cause 47
of action accrues.
(2)(a) Except as provided in divisions (A)(2)(b) and (c) 50
of this section, no cause of action for malpractice as described 51
in division (A)(1) of this section shall accrue later than six 52
years from the date of the occurrence of the act or omission 53
constituting the alleged basis of the claim of malpractice. 54
(b) Division (A)(2)(a) of this section is not available as 56
an affirmative defense to a defendant in an action for 57
malpractice as described in division (A)(1) of this section if 58
the defendant engages in fraud in regard to any relevant fact or 59
other information that pertains to the act or omission
constituting the alleged basis of the claim of malpractice. 60
(c) If a cause of action relative to an action for 62
malpractice as described in division (A)(1) of this section 64
accrues during the six-year period described in division
(A)(2)(a) of this section and the claimant cannot commence the 66
action during that period due to a disability described in 67
section 2305.16 of the Revised Code, an action for malpractice
may be commenced within two years after the disability is 68
removed.
(B)(1) Subject to divisions (B)(2) and (3) of this 70
section, an action upon a medical, dental, optometric, or 71
chiropractic claim shall be commenced within one year after the 72
cause of action accrues, except that, if prior to the expiration 73
of that one-year period, a claimant who allegedly possesses a 74
medical, dental, optometric, or chiropractic claim gives to the 75
person who is the subject of that claim written notice that the 76
claimant is considering bringing an action upon that claim, that 77
action may be commenced against the person notified at any time 78
within one hundred eighty days after the notice is so given. 79
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(2) The provisions of division (B)(1) of this section 82
shall be tolled as to persons within the age of minority or of
unsound mind, as provided by section 2305.16 of the Revised Code. 84
(3)(a) Except as provided in divisions (B)(3)(b), (c), or 86
(d) of this section, no cause of action upon a medical, dental, 88
optometric, or chiropractic claim shall accrue later than six 89
years after the occurrence of the act or omission constituting
the alleged basis of the medical, dental, optometric, or 90
chiropractic claim. 91
(b) Division (B)(3)(a) of this section is not available as 93
an affirmative defense to a defendant in an action upon a 94
medical, dental, optometric, or chiropractic claim as described 95
in division (B)(1) of this section if the defendant engages in 96
fraud in regard to any relevant fact or other information that 97
pertains to the act or omission constituting the alleged basis of
the medical, dental, optometric, or chiropractic claim. 98
(c) Notwithstanding an otherwise applicable period of 101
limitation specified in this chapter, if a plaintiff discovers an 102
injury that is the basis of a medical, dental, optometric, or 103
chiropractic claim within the six-year period described in 104
division (B)(3)(a) of this section, but less than one year prior 105
to the expiration of that period, an action based on the medical, 106
dental, optometric, or chiropractic claim may be commenced within 107
one year after the date of discovery of that injury. 108
(d) Notwithstanding an otherwise applicable period of 111
limitation specified in this chapter, if a medical, dental,
optometric, or chiropractic claim accrues during the six-year 112
period described in division (B)(3)(a) of this section and the 114
plaintiff cannot commence an action during the period due to a 115
disability described in section 2305.16 of the Revised Code, an 116
action based on the medical, dental, optometric, or chiropractic 117
claim may be commenced within one year after the removal of that 118
disability. 119
(C) A civil action for unlawful abortion pursuant to 121
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section 2919.12 of the Revised Code, a civil action authorized by 123
division (H) of section 2317.56 of the Revised Code, a civil 124
action pursuant to division (B)(1) or (2) of section 2307.51 125
2307.53 of the Revised Code for performing a dilation and 126
extraction procedure or attempting to perform a dilation and 127
extraction procedure in THE DEATH OF A CHILD THAT RESULTS FROM A 128
violation of DIVISION (B) OF section 2919.15 2919.151 of the 130
Revised Code, and a civil action pursuant to division (B)(1) or 132
(2) of section 2307.52 of the Revised Code for terminating or
attempting to terminate a human pregnancy after viability in 133
violation of division (A) or (B) of section 2919.17 of the 134
Revised Code shall be commenced within one year after the 135
performance or inducement of the abortion, within one year after 136
the attempt to perform or induce the abortion in violation of
division (A) or (B) of section 2919.17 of the Revised Code, 137
within one year after the performance of the dilation and 138
extraction procedure, or, in the case of a civil action pursuant 140
to division (B)(2) of section 2307.51 of the Revised Code, within 141
one year after the attempt to perform the dilation and extraction 143
procedure VIOLATION OF DIVISION (B) OF SECTION 2919.151 OF THE 144
REVISED CODE.
(D) As used in this section: 146
(1) "Hospital" includes any person, corporation, 148
association, board, or authority that is responsible for the 149
operation of any hospital licensed or registered in the state, 150
including, but not limited to, those which are owned or operated 151
by the state, political subdivisions, any person, any 152
corporation, or any combination thereof. "Hospital" also 153
includes any person, corporation, association, board, entity, or 154
authority that is responsible for the operation of any clinic 155
that employs a full-time staff of physicians practicing in more 156
than one recognized medical specialty and rendering advice, 157
diagnosis, care, and treatment to individuals. "Hospital" does 158
not include any hospital operated by the government of the United 159
5
States or any of its branches. 160
(2) "Physician" means a person who is licensed to practice 163
medicine and surgery or osteopathic medicine and surgery by the 164
state medical board or a person who otherwise is authorized to
practice medicine and surgery or osteopathic medicine and surgery 165
in this state. 166
(3) "Medical claim" means any claim that is asserted in 168
any civil action against a physician, podiatrist, or hospital, 169
against any employee or agent of a physician, podiatrist, or 170
hospital, or against a registered nurse, midwife, or physical 172
therapist, and that arises out of the medical diagnosis, care, or 173
treatment of any person. "Medical claim" includes derivative 174
claims for relief that arise from the medical diagnosis, care, or 175
treatment of a person and a claim that is asserted in a civil 176
action against a hospital and that is based on negligent 177
credentialing.
(4) "Podiatrist" means any person who is licensed to 179
practice podiatric medicine and surgery by the state medical 180
board. 181
(5) "Dentist" means any person who is licensed to practice 183
dentistry by the state dental board. 184
(6) "Dental claim" means any claim that is asserted in any 186
civil action against a dentist, or against any employee or agent 187
of a dentist, and that arises out of a dental operation or the 188
dental diagnosis, care, or treatment of any person. "Dental 189
claim" includes derivative claims for relief that arise from a 190
dental operation or the dental diagnosis, care, or treatment of a 191
person. 192
(7) "Derivative claims for relief" include, but are not 194
limited to, claims of a parent, guardian, custodian, or spouse of 195
an individual who was the subject of any medical diagnosis, care, 196
or treatment, dental diagnosis, care, or treatment, dental 197
operation, optometric diagnosis, care, or treatment, or 198
chiropractic diagnosis, care, or treatment, that arise from that 199
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diagnosis, care, treatment, or operation, and that seek the 200
recovery of damages for any of the following: 201
(a) Loss of society, consortium, companionship, care, 203
assistance, attention, protection, advice, guidance, counsel, 204
instruction, training, or education, or any other intangible loss 205
that was sustained by the parent, guardian, custodian, or spouse; 206
(b) Expenditures of the parent, guardian, custodian, or 208
spouse for medical, dental, optometric, or chiropractic care or 209
treatment, for rehabilitation services, or for other care, 210
treatment, services, products, or accommodations provided to the 211
individual who was the subject of the medical diagnosis, care, or 212
treatment, the dental diagnosis, care, or treatment, the dental 213
operation, the optometric diagnosis, care, or treatment, or the 215
chiropractic diagnosis, care, or treatment.
(8) "Registered nurse" means any person who is licensed to 217
practice nursing as a registered nurse by the state board of 218
nursing. 219
(9) "Chiropractic claim" means any claim that is asserted 221
in any civil action against a chiropractor, or against any 222
employee or agent of a chiropractor, and that arises out of the 223
chiropractic diagnosis, care, or treatment of any person. 224
"Chiropractic claim" includes derivative claims for relief that 225
arise from the chiropractic diagnosis, care, or treatment of a 226
person. 227
(10) "Chiropractor" means any person who is licensed to 229
practice chiropractic by the chiropractic examining board. 230
(11) "Optometric claim" means any claim that is asserted 232
in any civil action against an optometrist, or against any 233
employee or agent of an optometrist, and that arises out of the 234
optometric diagnosis, care, or treatment of any person. 235
"Optometric claim" includes derivative claims for relief that 236
arise from the optometric diagnosis, care, or treatment of a 237
person. 238
(12) "Optometrist" means any person licensed to practice 240
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optometry by the state board of optometry. 241
(13) "Physical therapist" means any person who is licensed 243
to practice physical therapy under Chapter 4755. of the Revised 244
Code. 245
Sec. 2307.53. (A) AS USED IN THIS SECTION, "FRIVOLOUS 248
CONDUCT" HAS THE SAME MEANING AS IN SECTION 2323.51 OF THE 249
REVISED CODE.
(B) A WOMAN WHOSE CHILD IS KILLED AS A RESULT OF A 251
VIOLATION OF DIVISION (B) OF SECTION 2919.151 OF THE REVISED 253
CODE, THE FATHER OF THE CHILD IF THE CHILD WAS NOT CONCEIVED BY 254
RAPE, OR THE PARENT OF THE WOMAN IF THE WOMAN IS NOT EIGHTEEN 255
YEARS OF AGE OR OLDER AT THE TIME OF THE VIOLATION HAS AND MAY 257
COMMENCE A CIVIL ACTION FOR COMPENSATORY DAMAGES, PUNITIVE OR 258
EXEMPLARY DAMAGES IF AUTHORIZED BY SECTION 2315.21 OF THE REVISED 259
CODE, AND COURT COSTS AND REASONABLE ATTORNEY'S FEES AGAINST THE 260
PERSON WHO COMMITTED THE VIOLATION. 261
(C) IF A JUDGMENT IS RENDERED IN FAVOR OF THE DEFENDANT IN 263
A CIVIL ACTION COMMENCED PURSUANT TO DIVISION (B) OF THIS SECTION 265
AND THE COURT FINDS, UPON THE FILING OF A MOTION UNDER SECTION 266
2323.51 OF THE REVISED CODE, THAT THE COMMENCEMENT OF THE CIVIL 267
ACTION CONSTITUTES FRIVOLOUS CONDUCT AND THAT THE DEFENDANT WAS 268
ADVERSELY AFFECTED BY THE FRIVOLOUS CONDUCT, THE COURT SHALL 269
AWARD IN ACCORDANCE WITH SECTION 2323.51 OF THE REVISED CODE 270
REASONABLE ATTORNEY'S FEES TO THE DEFENDANT. 272
Sec. 2901.01. (A) As used in the Revised Code: 281
(1) "Force" means any violence, compulsion, or constraint 283
physically exerted by any means upon or against a person or 284
thing. 285
(2) "Deadly force" means any force that carries a 287
substantial risk that it will proximately result in the death of 288
any person. 289
(3) "Physical harm to persons" means any injury, illness, 291
or other physiological impairment, regardless of its gravity or 292
duration. 293
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(4) "Physical harm to property" means any tangible or 295
intangible damage to property that, in any degree, results in 296
loss to its value or interferes with its use or enjoyment. 297
"Physical harm to property" does not include wear and tear 298
occasioned by normal use. 299
(5) "Serious physical harm to persons" means any of the 301
following: 302
(a) Any mental illness or condition of such gravity as 304
would normally require hospitalization or prolonged psychiatric 305
treatment; 306
(b) Any physical harm that carries a substantial risk of 308
death; 309
(c) Any physical harm that involves some permanent 311
incapacity, whether partial or total, or that involves some 312
temporary, substantial incapacity; 313
(d) Any physical harm that involves some permanent 315
disfigurement or that involves some temporary, serious 316
disfigurement; 317
(e) Any physical harm that involves acute pain of such 319
duration as to result in substantial suffering or that involves 320
any degree of prolonged or intractable pain. 321
(6) "Serious physical harm to property" means any physical 323
harm to property that does either of the following: 324
(a) Results in substantial loss to the value of the 326
property or requires a substantial amount of time, effort, or 327
money to repair or replace; 328
(b) Temporarily prevents the use or enjoyment of the 330
property or substantially interferes with its use or enjoyment 331
for an extended period of time. 332
(7) "Risk" means a significant possibility, as contrasted 334
with a remote possibility, that a certain result may occur or 335
that certain circumstances may exist. 336
(8) "Substantial risk" means a strong possibility, as 338
contrasted with a remote or significant possibility, that a 339
9
certain result may occur or that certain circumstances may exist. 340
(9) "Offense of violence" means any of the following: 342
(a) A violation of section 2903.01, 2903.02, 2903.03, 344
2903.04, 2903.11, 2903.12, 2903.13, 2903.21, 2903.211, 2903.22, 345
2905.01, 2905.02, 2905.11, 2907.02, 2907.03, 2907.05, 2909.02, 346
2909.03, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 347
2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161 or of 348
division (A)(1), (2), or (3) of section 2911.12 of the Revised 349
Code or felonious sexual penetration in violation of former 350
section 2907.12 of the Revised Code; 351
(b) A violation of an existing or former municipal 353
ordinance or law of this or any other state or the United States, 354
substantially equivalent to any section, division, or offense 356
listed in division (A)(9)(a) of this section; 357
(c) An offense, other than a traffic offense, under an 359
existing or former municipal ordinance or law of this or any 360
other state or the United States, committed purposely or 361
knowingly, and involving physical harm to persons or a risk of 362
serious physical harm to persons; 363
(d) A conspiracy or attempt to commit, or complicity in 365
committing, any offense under division (A)(9)(a), (b), or (c) of 367
this section.
(10)(a) "Property" means any property, real or personal, 370
tangible or intangible, and any interest or license in that 371
property. "Property" includes, but is not limited to, cable
television service, other telecommunications service, 372
telecommunications devices, information service, computers, data, 373
computer software, financial instruments associated with 375
computers, other documents associated with computers, or copies 376
of the documents, whether in machine or human readable form, 377
trade secrets, trademarks, copyrights, patents, and property 378
protected by a trademark, copyright, or patent. "Financial 379
instruments associated with computers" include, but are not 380
limited to, checks, drafts, warrants, money orders, notes of 381
10
indebtedness, certificates of deposit, letters of credit, bills 382
of credit or debit cards, financial transaction authorization 383
mechanisms, marketable securities, or any computer system 384
representations of any of them. 385
(b) As used in division (A)(10) of this section, "trade 388
secret" has the same meaning as in section 1333.61 of the Revised 389
Code, and "telecommunications . service" and "information 390
service" have the same meanings as in section 2913.01 of the 392
Revised Code.
(c) As used in divisions (A)(10) and (13) of this section, 395
"cable television service," "computer," "computer software," 396
"computer system," "computer network," "data," and 397
"telecommunications device" have the same meanings as in section 398
2913.01 of the Revised Code.
(11) "Law enforcement officer" means any of the following: 400
(a) A sheriff, deputy sheriff, constable, police officer 402
of a township or joint township police district, marshal, deputy 403
marshal, municipal police officer, member of a police force 404
employed by a metropolitan housing authority under division (D) 405
of section 3735.31 of the Revised Code, or state highway patrol 406
trooper; 407
(b) An officer, agent, or employee of the state or any of 409
its agencies, instrumentalities, or political subdivisions, upon 410
whom, by statute, a duty to conserve the peace or to enforce all 411
or certain laws is imposed and the authority to arrest violators 412
is conferred, within the limits of that statutory duty and 413
authority; 414
(c) A mayor, in the mayor's capacity as chief conservator 416
of the peace within the mayor's municipal corporation; 417
(d) A member of an auxiliary police force organized by 419
county, township, or municipal law enforcement authorities, 420
within the scope of the member's appointment or commission; 421
(e) A person lawfully called pursuant to section 311.07 of 423
the Revised Code to aid a sheriff in keeping the peace, for the 424
11
purposes and during the time when the person is called; 425
(f) A person appointed by a mayor pursuant to section 427
737.01 of the Revised Code as a special patrolling officer during 429
riot or emergency, for the purposes and during the time when the 430
person is appointed;
(g) A member of the organized militia of this state or the 432
armed forces of the United States, lawfully called to duty to aid 433
civil authorities in keeping the peace or protect against 434
domestic violence; 435
(h) A prosecuting attorney, assistant prosecuting 437
attorney, secret service officer, or municipal prosecutor; 438
(i) An Ohio veterans' home police officer appointed under 440
section 5907.02 of the Revised Code; 441
(j) A member of a police force employed by a regional 443
transit authority under division (Y) of section 306.35 of the 444
Revised Code.
(12) "Privilege" means an immunity, license, or right 446
conferred by law, bestowed by express or implied grant, arising 448
out of status, position, office, or relationship, or growing out 449
of necessity.
(13) "Contraband" means any property described in the 451
following categories: 452
(a) Property that in and of itself is unlawful for a 454
person to acquire or possess; 455
(b) Property that is not in and of itself unlawful for a 457
person to acquire or possess, but that has been determined by a 458
court of this state, in accordance with law, to be contraband 459
because of its use in an unlawful activity or manner, of its 460
nature, or of the circumstances of the person who acquires or 461
possesses it, including, but not limited to, goods and personal 462
property described in division (D) of section 2913.34 of the 463
Revised Code;
(c) Property that is specifically stated to be contraband 465
by a section of the Revised Code or by an ordinance, regulation, 466
12
or resolution; 467
(d) Property that is forfeitable pursuant to a section of 469
the Revised Code, or an ordinance, regulation, or resolution, 470
including, but not limited to, forfeitable firearms, dangerous 471
ordnance, obscene materials, and goods and personal property 473
described in division (D) of section 2913.34 of the Revised Code;
(e) Any controlled substance, as defined in section 475
3719.01 of the Revised Code, or any device, paraphernalia, money 476
as defined in section 1301.01 of the Revised Code, or other means 477
of exchange that has been, is being, or is intended to be used in 478
an attempt or conspiracy to violate, or in a violation of, 479
Chapter 2925. or 3719. of the Revised Code; 480
(f) Any gambling device, paraphernalia, money as defined 482
in section 1301.01 of the Revised Code, or other means of 483
exchange that has been, is being, or is intended to be used in an 484
attempt or conspiracy to violate, or in the violation of, Chapter 485
2915. of the Revised Code; 486
(g) Any equipment, machine, device, apparatus, vehicle, 488
vessel, container, liquid, or substance that has been, is being, 489
or is intended to be used in an attempt or conspiracy to violate, 490
or in the violation of, any law of this state relating to alcohol 491
or tobacco; 492
(h) Any personal property that has been, is being, or is 494
intended to be used in an attempt or conspiracy to commit, or in 495
the commission of, any offense or in the transportation of the 496
fruits of any offense; 497
(i) Any property that is acquired through the sale or 499
other transfer of contraband or through the proceeds of 500
contraband, other than by a court or a law enforcement agency 501
acting within the scope of its duties; 502
(j) Any computer, computer system, computer network, 504
computer software, or other telecommunications device that is 505
used in a conspiracy to commit, an attempt to commit, or the 507
commission of any offense, if the owner of the computer, computer 508
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system, computer network, computer software, or other 509
telecommunications device is convicted of or pleads guilty to the 510
offense in which it is used.
(14) A person is "not guilty by reason of insanity" 512
relative to a charge of an offense only if the person proves, in 513
the manner specified in section 2901.05 of the Revised Code, that 514
at the time of the commission of the offense, the person did not 515
know, as a result of a severe mental disease or defect, the 516
wrongfulness of the person's acts. 517
(B)(1)(a) Subject to division (B)(2) of this section, as 520
used in any section contained in Title XXIX of the Revised Code 521
that sets forth a criminal offense, "person" includes all of the 522
following:
(i) An individual, corporation, business trust, estate, 524
trust, partnership, and association; 525
(ii) An unborn human who is viable. 527
(b) As used in any section contained in Title XXIX of the 530
Revised Code that does not set forth a criminal offense, "person" 531
includes an individual, corporation, business trust, estate, 532
trust, partnership, and association.
(c) As used in division (B)(1)(a) of this section: 534
(i) "Unborn human" means an individual organism of the 536
species homo sapiens from fertilization until live birth. 537
(ii) "Viable" means the stage of development of a human 540
fetus at which there is a realistic possibility of maintaining
and nourishing of a life outside the womb with or without 541
temporary artificial life-sustaining support. 542
(2) Notwithstanding division (B)(1)(a) of this section, in 544
no case shall the portion of the definition of the term "person" 545
that is set forth in division (B)(1)(a)(ii) of this section be 546
applied or construed in any section contained in Title XXIX of 547
the Revised Code that sets forth a criminal offense in any of the 548
following manners:
(a) Except as otherwise provided in division (B)(2)(a) of 550
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this section, in a manner so that the offense prohibits or is 551
construed as prohibiting any pregnant woman or her physician from 552
performing an abortion with the consent of the pregnant woman, 553
with the consent of the pregnant woman implied by law in a 554
medical emergency, or with the approval of one otherwise 555
authorized by law to consent to medical treatment on behalf of
the pregnant woman. An abortion that violates the conditions 556
described in the immediately preceding sentence may be punished 557
as a violation of section 2903.01, 2903.02, 2903.03, 2903.04, 558
2903.05, 2903.06, 2903.07, 2903.08, 2903.11, 2903.12, 2903.13, 559
2903.14, 2903.21, or 2903.22 of the Revised Code, as applicable. 560
An abortion that does not violate the conditions described in the 561
second immediately preceding sentence, but that does violate
section 2919.12, division (B) of section 2919.13, section 2919.15 562
2919.151, 2919.17, or 2919.18 of the Revised Code, may be 564
punished as a violation of section 2919.12, division (B) of 565
section 2919.13, section 2919.15 2919.151, 2919.17, or 2919.18 of 566
the Revised Code, as applicable. Consent is sufficient under 568
this division if it is of the type otherwise adequate to permit 569
medical treatment to the pregnant woman, even if it does not 570
comply with section 2919.12 of the Revised Code.
(b) In a manner so that the offense is applied or is 573
construed as applying to a woman based on an act or omission of
the woman that occurs while she is or was pregnant and that 574
results in any of the following: 575
(i) Her delivery of a stillborn baby; 577
(ii) Her causing, in any other manner, the death in utero 580
of a viable, unborn human that she is carrying;
(iii) Her causing the death of her child who is born alive 583
but who dies from one or more injuries that are sustained while
the child is a viable, unborn human; 584
(iv) Her causing her child who is born alive to sustain 587
one or more injuries while the child is a viable, unborn human;
(v) Her causing, threatening to cause, or attempting to 590
15
cause, in any other manner, an injury, illness, or other
physiological impairment, regardless of its duration or gravity, 591
or a mental illness or condition, regardless of its duration or 592
gravity, to a viable, unborn human that she is carrying. 593
Sec. 2903.09. As used in sections 2903.01 to 2903.08, 602
2903.11 to 2903.14, 2903.21, and 2903.22 of the Revised Code: 604
(A) "Unlawful termination of another's pregnancy" means 607
causing the death of an unborn member of the species homo
sapiens, who is or was carried in the womb of another, as a 608
result of injuries inflicted during the period that begins with 609
fertilization and that continues unless and until live birth 610
occurs.
(B) "Another's unborn" or "such other person's unborn" 612
means a member of the species homo sapiens, who is or was carried 613
in the womb of another, during a period that begins with 614
fertilization and that continues unless and until live birth 615
occurs.
(C) Notwithstanding divisions (A) and (B) of this section, 618
in no case shall the definitions of the terms "unlawful
termination of another's pregnancy," "another's unborn," and 620
"such other person's unborn" that are set forth in division (A) 621
of this section be applied or construed in any of the following 622
manners:
(1) Except as otherwise provided in division (C)(1) of 624
this section, in a manner so that the offense prohibits or is 625
construed as prohibiting any pregnant woman or her physician from 626
performing an abortion with the actual consent of the pregnant 627
woman, with the consent of the pregnant woman implied by law in a 629
medical emergency, or with the approval of one otherwise 630
authorized by law to consent to medical treatment on behalf of
the pregnant woman. An abortion that violates the conditions 631
described in the immediately preceding sentence may be punished 632
as a violation of section 2903.01, 2903.02, 2903.03, 2903.04, 633
2903.05, 2903.06, 2903.07, 2903.08, 2903.11, 2903.12, 2903.13, 634
16
2903.14, 2903.21, or 2903.22 of the Revised Code, as applicable. 636
An abortion that does not violate the conditions described in the 637
second immediately preceding sentence, but that does violate
section 2919.12, division (B) of section 2919.13, section 2919.15 638
2919.151, 2919.17, or 2919.18 of the Revised Code, may be 640
punished as a violation of section 2919.12, division (B) of 642
section 2919.13, section 2919.15 2919.151, 2919.17, or 2919.18 of 644
the Revised Code, as applicable. 645
(2) In a manner so that the offense is applied or is 648
construed as applying to a woman based on an act or omission of
the woman that occurs while she is or was pregnant and that 649
results in any of the following: 650
(a) Her delivery of a stillborn baby; 652
(b) Her causing, in any other manner, the death in utero 655
of an unborn that she is carrying;
(c) Her causing the death of her child who is born alive 658
but who dies from one or more injuries that are sustained while
the child is an unborn; 659
(d) Her causing her child who is born alive to sustain one 662
or more injuries while the child is an unborn;
(e) Her causing, threatening to cause, or attempting to 665
cause, in any other manner, an injury, illness, or other
physiological impairment, regardless of its duration or gravity, 666
or a mental illness or condition, regardless of its duration or 667
gravity, to an unborn that she is carrying. 668
Sec. 2919.151. (A) AS USED IN THIS SECTION: 670
(1) "BODY" OF A LIVING CHILD DOES NOT INCLUDE THE 672
UMBILICAL CORD OR THE PLACENTA. 673
(2) "EMERGED FROM THE BODY OF THE CHILD'S MOTHER" OR 675
"REMOVED FROM THE BODY OF THE CHILD'S MOTHER" MEANS THAT THE 676
PORTION OF THE CHILD'S BODY IN QUESTION IS BEYOND THE MOTHER'S 677
VAGINAL INTROITUS IN A VAGINAL DELIVERY OR BEYOND THE MOTHER'S 678
EXTERNAL ABDOMINAL WALL IN A CAESAREAN DELIVERY. 679
(3) "LIVING CHILD" MEANS A MEMBER OF THE HUMAN SPECIES WHO 681
17
HAS A BEATING HEART. 682
(4) "PARTIAL BIRTH" OR "PARTIALLY BORN" MEANS THAT EITHER 684
OF THE FOLLOWING ATTACHED PORTIONS OF THE BODY OF A LIVING CHILD, 685
BUT NOT THE ENTIRE BODY OF A LIVING CHILD, HAVE EMERGED OR HAVE 686
BEEN REMOVED FROM THE BODY OF THE CHILD'S MOTHER: 687
(a) IN A CEPHALIC PRESENTATION, AT LEAST THE CHILD'S 689
ENTIRE HEAD; 690
(b) IN A BREECH PRESENTATION, AT LEAST THE LOWER TORSO OF 692
THE CHILD TO THE NAVEL. 693
(B) NO PERSON SHALL DO BOTH OF THE FOLLOWING, EXCEPT WHEN 695
NECESSARY TO SAVE THE LIFE OF THE MOTHER WHEN THE MOTHER'S LIFE 696
IS ENDANGERED BY A PHYSICAL DISORDER, ILLNESS, OR INJURY OR WHEN 697
THE MOTHER'S LIFE IS ENDANGERED BY A PROBLEM OCCURRING DURING AN 699
ABORTION OR DELIVERY:
(1) PURPOSELY CAUSE THE PARTIAL BIRTH OF A LIVING CHILD 701
FOR THE PURPOSE OF KILLING THE CHILD WHEN THE CHILD IS PARTIALLY 702
BORN;
(2) AFTER THE PARTIAL BIRTH OF THE CHILD, PURPOSELY KILL 704
THE CHILD BY A SECOND OVERT ACT THAT IS PERFORMED WHEN THE CHILD 705
IS KNOWN TO BE A LIVING CHILD AND IS KNOWN TO BE PARTIALLY BORN. 706
(C) WHOEVER VIOLATES DIVISION (B) OF THIS SECTION IS 708
GUILTY OF PARTIAL BIRTH INFANTICIDE, A FELONY OF THE SECOND 710
DEGREE.
(D) A PREGNANT WOMAN WHOSE CHILD IS KILLED AS A RESULT OF 712
A VIOLATION OF DIVISION (B) OF THIS SECTION IS NOT GUILTY OF 713
COMMITTING, ATTEMPTING TO COMMIT, COMPLICITY IN THE COMMISSION 714
OF, OR CONSPIRACY IN THE COMMISSION OF A VIOLATION OF THAT 716
DIVISION.
Section 2. That existing sections 2305.11, 2901.01, and 718
2903.09 and sections 2307.51 and 2919.15 of the Revised Code are 720
hereby repealed.
Section 3. The General Assembly declares all of the 722
following:
(A) In enacting sections 2307.53 and 2919.151 of the 724
18
Revised Code, its intent is to prevent the unnecessary killing of 725
children when they are substantially outside the body of the 726
mother.
(B) This intent is based in part on a state interest in 728
maintaining a strong public policy against infanticide, 729
regardless of the life expectancy or stage of development of the 730
child.
(C) The right to abortion established in Roe v. Wade 732
(1973), 410 U.S. 113, was never intended to legitimize 733
infanticide or to deprive the state of all ability to protect 735
children who are substantially outside the body of the mother.
(D) The General Assembly finds that some physicians, 737
rather than performing a standard abortion that is intended to 738
kill the fetus as a result of actions taken while the fetus is 739
still in the woman's body, have performed procedures that involve 740
the deliberate delivery of an attached substantial portion of the 741
body of the living child from the woman's body for the purpose of 742
causing death after the child is partially born, a form of 743
infanticide. 744
(E) The act also furthers the state interest in preventing 746
unnecessary cruelty. This interest is not necessarily based 747
solely on the ability of the fetus or child to experience pain. 748
The indignity of being partly delivered before being deliberately 749
killed is also a form of cruelty that should not be unnecessarily 750
inflicted upon any being of human origin. Therefore, there are 751
legitimate reasons for deterring the unnecessary use of 752
partial-birth infanticide, even though painful abortion 753
procedures remain available. 754