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           

                                                          3      


                                                                 
      (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          

                                                          4      


                                                                 
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          

                                                          6      


                                                                 
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          

                                                          7      


                                                                 
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          

                                                          8      


                                                                 
      (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          

                                                          13     


                                                                 
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          

                                                          14     


                                                                 
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