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(123rd General Assembly)(Substitute House Bill Number 351)
AN ACT
To amend sections 2901.01 and 2903.09, to enact sections 2305.114, 2307.53,
and
2919.151, and to repeal sections 2307.51 and 2919.15 of the Revised Code to
create the offense of partial birth feticide, to allow
specified persons to commence a civil action for
partial birth feticide, and to repeal the prohibition
against performing a dilation and extraction procedure on a pregnant woman and
the related civil action.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1 . That sections 2901.01 and 2903.09 be amended and
sections 2305.114, 2307.53, and 2919.151 of the Revised Code
be enacted to read as follows:
Sec. 2305.114. A civil action pursuant to section 2307.53 of the
Revised Code for partial
birth feticide shall be commenced within one year after the commission of
that offense. Sec. 2307.53. (A) As used in this section: (1) "Frivolous conduct" has the same meaning as in section 2323.51 of
the Revised Code. (2) "Partial birth procedure" has the same meaning as in section
2919.151 of the Revised Code. (B) A woman upon whom a partial birth procedure is performed in
violation of
division (B) or (C) of section 2919.151 of the
Revised Code, the father
of the child if the child was not conceived by rape, or the parent of the
woman if the woman is not eighteen years of age or older at the time of the
violation has
and may commence a civil action for compensatory damages, punitive
or exemplary damages if authorized by section 2315.21 of the
Revised Code, and court costs and
reasonable attorney's fees against the person who committed the
violation. (C) If a judgment is rendered in favor of the defendant in a
civil
action commenced pursuant to division (B) of this section and the
court finds, upon the filing of a motion under section 2323.51 of the
Revised Code, that the commencement of the civil action
constitutes frivolous conduct and that the defendant was adversely affected by
the frivolous conduct, the court shall award
in accordance with section 2323.51 of the Revised Code
reasonable
attorney's fees to the defendant. Sec. 2901.01. (A) As used in the Revised Code: (1) "Force" means any violence, compulsion, or constraint
physically exerted by any means upon or against a person or
thing. (2) "Deadly force" means any force that carries a
substantial risk that it will proximately result in the death of
any person. (3) "Physical harm to persons" means any injury, illness,
or other physiological impairment, regardless of its gravity or
duration. (4) "Physical harm to property" means any tangible or
intangible damage to property that, in any degree, results in
loss to its value or interferes with its use or enjoyment.
"Physical harm to property" does not include wear and tear
occasioned by normal use. (5) "Serious physical harm to persons" means any of the
following: (a) Any mental illness or condition of such gravity as
would normally require hospitalization or prolonged psychiatric
treatment; (b) Any physical harm that carries a substantial risk of
death; (c) Any physical harm that involves some permanent
incapacity, whether partial or total, or that involves some
temporary, substantial incapacity; (d) Any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement; (e) Any physical harm that involves acute pain of such
duration as to result in substantial suffering or that involves
any degree of prolonged or intractable pain. (6) "Serious physical harm to property" means any physical
harm to property that does either of the following: (a) Results in substantial loss to the value of the
property or requires a substantial amount of time, effort, or
money to repair or replace; (b) Temporarily prevents the use or enjoyment of the
property or substantially interferes with its use or enjoyment
for an extended period of time. (7) "Risk" means a significant possibility, as contrasted
with a remote possibility, that a certain result may occur or
that certain circumstances may exist. (8) "Substantial risk" means a strong possibility, as
contrasted with a remote or significant possibility, that a
certain result may occur or that certain circumstances may exist. (9) "Offense of violence" means any of the following: (a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22,
2905.01, 2905.02, 2905.11, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03,
2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31,
2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1), (2), or
(3) of section 2911.12, or of division (B)(1), (2), (3), or (4) of section
2919.22 of the Revised Code or felonious sexual penetration in violation of
former section 2907.12 of the Revised Code; (b) A violation of an existing or former municipal
ordinance or law of this or any other state or the United States,
substantially equivalent to any section, division, or
offense listed in division (A)(9)(a) of this section; (c) An offense, other than a traffic offense, under an
existing or former municipal ordinance or law of this or any
other state or the United States, committed purposely or
knowingly, and involving physical harm to persons or a risk of
serious physical harm to persons; (d) A conspiracy or attempt to commit, or complicity in
committing, any offense under division (A)(9)(a),
(b), or (c) of this section. (10)(a) "Property" means any property, real or
personal, tangible or intangible, and any interest or license in
that property. "Property" includes, but is not limited to, cable
television service, other telecommunications service,
telecommunications devices, information service, computers, data,
computer software, financial
instruments associated with computers, other documents
associated with computers, or copies of the documents, whether in
machine or human readable form, trade secrets, trademarks,
copyrights, patents, and property protected by a trademark, copyright, or
patent. "Financial instruments
associated with computers" include, but are not limited to,
checks, drafts, warrants, money orders, notes of indebtedness,
certificates of deposit, letters of credit, bills of credit or
debit cards, financial transaction authorization mechanisms,
marketable securities, or any computer system representations of
any of them. (b) As used in division (A)(10)
of this section, "trade secret" has the same meaning as in section 1333.61
of the Revised Code, and "telecommunications service" and
"information
service" have the same
meanings as in section 2913.01 of the Revised Code. (c) As used in divisions (A)(10) and (13) of
this section, "cable television service," "computer," "computer
software," "computer system," "computer network," "data,"
and "telecommunications device" have the same
meanings as in section 2913.01 of the Revised Code. (11) "Law enforcement officer" means any of the following: (a) A sheriff, deputy sheriff, constable, police officer
of a township or joint township police district, marshal, deputy
marshal, municipal police officer, member of a police force
employed by a metropolitan housing authority under division (D)
of section 3735.31 of the Revised Code, or state highway patrol
trooper; (b) An officer, agent, or employee of the state or any of
its agencies, instrumentalities, or political subdivisions, upon
whom, by statute, a duty to conserve the peace or to enforce all
or certain laws is imposed and the authority to arrest violators
is conferred, within the limits of that statutory duty and
authority; (c) A mayor, in the mayor's capacity as chief conservator of the
peace within the mayor's municipal corporation; (d) A member of an auxiliary police force organized by
county, township, or municipal law enforcement authorities,
within the scope of the member's appointment or commission; (e) A person lawfully called pursuant to section 311.07 of
the Revised Code to aid a sheriff in keeping the peace, for the
purposes and during the time when the person is called; (f) A person appointed by a mayor pursuant to section
737.01 of the Revised Code as a special patrolling
officer during riot or emergency, for the purposes and during the time when
the person is appointed; (g) A member of the organized militia of this state or the
armed forces of the United States, lawfully called to duty to aid
civil authorities in keeping the peace or protect against
domestic violence; (h) A prosecuting attorney, assistant prosecuting
attorney, secret service officer, or municipal prosecutor; (i) An Ohio veterans' home police officer appointed under
section 5907.02 of the Revised Code; (j) A member of a police force employed by a regional
transit authority under division (Y) of section 306.35 of the Revised Code. (12) "Privilege" means an immunity, license, or right
conferred by law, bestowed by express or implied grant,
arising out of status, position, office, or relationship, or
growing out of necessity. (13) "Contraband" means any property described in the
following categories: (a) Property that in and of itself is unlawful for a
person to acquire or possess; (b) Property that is not in and of itself unlawful for a
person to acquire or possess, but that has been determined by a
court of this state, in accordance with law, to be contraband
because of its use in an unlawful activity or manner, of its
nature, or of the circumstances of the person who acquires or
possesses it, including, but not limited to, goods and personal
property described in division (D) of section 2913.34 of the Revised Code; (c) Property that is specifically stated to be contraband
by a section of the Revised Code or by an ordinance, regulation,
or resolution; (d) Property that is forfeitable pursuant to a section of
the Revised Code, or an ordinance, regulation, or resolution,
including, but not limited to, forfeitable firearms, dangerous
ordnance, obscene materials, and goods and personal
property described in division (D) of section 2913.34 of the Revised Code; (e) Any controlled substance, as defined in section
3719.01 of the Revised Code, or any device, paraphernalia, money
as defined in section 1301.01 of the Revised Code, or other means
of exchange that has been, is being, or is intended to be used in
an attempt or conspiracy to violate, or in a violation of,
Chapter 2925. or 3719. of the Revised Code; (f) Any gambling device, paraphernalia, money as defined
in section 1301.01 of the Revised Code, or other means of
exchange that has been, is being, or is intended to be used in an
attempt or conspiracy to violate, or in the violation of, Chapter
2915. of the Revised Code; (g) Any equipment, machine, device, apparatus, vehicle,
vessel, container, liquid, or substance that has been, is being,
or is intended to be used in an attempt or conspiracy to violate,
or in the violation of, any law of this state relating to alcohol
or tobacco; (h) Any personal property that has been, is being, or is
intended to be used in an attempt or conspiracy to commit, or in
the commission of, any offense or in the transportation of the
fruits of any offense; (i) Any property that is acquired through the sale or
other transfer of contraband or through the proceeds of
contraband, other than by a court or a law enforcement agency
acting within the scope of its duties; (j) Any computer, computer system, computer network,
computer software, or other telecommunications device that is
used in a conspiracy to commit, an
attempt to commit, or the commission of any offense, if the
owner of the computer, computer system, computer network, computer
software, or other telecommunications device is convicted of or
pleads guilty to the offense in which it is used. (14) A person is "not guilty by reason of insanity"
relative to a charge of an offense only if the person proves, in the
manner specified in section 2901.05 of the Revised Code, that at
the time of the commission of the offense, the person did not know, as a
result of a severe mental disease or defect, the wrongfulness of
the person's acts. (B)(1)(a) Subject to division (B)(2) of this section,
as used in any section contained in Title XXIX
of the Revised Code that sets forth a criminal offense,
"person" includes all of the following: (i) An individual, corporation, business trust, estate, trust,
partnership, and association; (ii) An unborn human who is viable. (b) As used in any section contained in Title
XXIX of the Revised Code that does not set forth a
criminal offense, "person" includes an individual, corporation, business
trust, estate, trust, partnership, and association. (c) As used in division (B)(1)(a) of this section: (i) "Unborn human" means an individual organism of the species
homo sapiens from fertilization until live birth. (ii) "Viable" means the stage of development of
a human fetus at which there is a realistic possibility of maintaining and
nourishing of a life outside the womb with or without temporary artificial
life-sustaining support. (2) Notwithstanding division (B)(1)(a) of this section, in no case
shall the portion of the definition of the term "person" that is set forth in
division (B)(1)(a)(ii) of this section be
applied or construed in any section contained in Title XXIX of the Revised
Code that sets forth a criminal offense in any of the following manners: (a) Except as otherwise provided in division (B)(2)(a) of this section, in a
manner so that the offense prohibits or is construed as
prohibiting any pregnant woman or her physician from performing an abortion
with the consent of the pregnant woman, with the consent of the pregnant
woman implied by law in a medical emergency, or with the approval of one
otherwise authorized by law to consent to medical treatment on behalf of the
pregnant woman. An abortion that violates the conditions described in the
immediately preceding sentence may be punished as a violation of section
2903.01, 2903.02, 2903.03, 2903.04, 2903.05, 2903.06, 2903.08,
2903.11, 2903.12, 2903.13, 2903.14, 2903.21, or 2903.22 of the Revised Code,
as applicable. An abortion that does not violate the conditions
described in the second immediately preceding sentence, but that does violate
section 2919.12, division (B) of section 2919.13, or section
2919.15
2919.151,
2919.17, or 2919.18 of the Revised Code, may be punished as a violation of
section 2919.12, division (B) of section 2919.13, or
section 2919.15 2919.151, 2919.17, or 2919.18 of the Revised
Code, as
applicable. Consent is sufficient under this division if it is of the type
otherwise adequate to permit medical treatment to the pregnant woman, even if
it does not comply with section 2919.12 of the Revised Code. (b) In a manner so that the offense is applied or
is 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 results in any of the
following: (i) Her delivery of a stillborn baby; (ii) Her causing, in any other manner, the death in
utero of a viable, unborn human that she is carrying; (iii) Her causing the death of her child who is born
alive but who dies from one or more injuries that are sustained while the
child is a viable, unborn human; (iv) Her causing her child who is born alive to
sustain one or more injuries while the child is a viable, unborn human; (v) Her causing, threatening to cause, or attempting
to cause, in any other manner, an injury, illness, or other physiological
impairment, regardless of its duration or gravity, or a mental illness or
condition, regardless of its duration or gravity, to a viable, unborn human
that she is carrying. (C) As used in Title XXIX of the Revised Code: (1) "School safety zone"
consists of a school, school building, school premises, school
activity, and school bus. (2) "School," "school building," and "school premises" have the same
meanings as in section 2925.01 of the Revised Code. (3) "School activity" means any activity held under the
auspices of a board of education of a city, local,
exempted village, joint vocational, or cooperative education
school district, a governing board of an educational service center,
or the governing body of a school for which the
state board of education prescribes minimum standards under
section 3301.07 of the Revised
Code. (4) "School bus" has the same meaning as in section
4511.01 of the Revised
Code. Sec. 2903.09. As used in sections 2903.01 to 2903.08, 2903.11 to 2903.14,
2903.21, and 2903.22 of the Revised
Code: (A) "Unlawful termination of another's
pregnancy" means causing the death of an unborn member of the species homo
sapiens, who is or was carried in the womb of another, as a result of injuries
inflicted during the period that begins with fertilization and that continues
unless and until live birth occurs. (B) "Another's unborn" or "such other person's unborn" means a
member of the species homo sapiens, who is or was carried in the womb of
another, during a period that begins with fertilization and that continues
unless and until live birth occurs. (C) Notwithstanding divisions (A) and (B) of
this section, in no case shall the definitions of the terms "unlawful
termination of another's
pregnancy," "another's unborn," and "such other person's unborn" that are set
forth in division (A) of this section be
applied or construed in any of the following manners: (1) Except as otherwise provided in division (C)(1) of this
section, in a manner so that the offense prohibits or is construed as
prohibiting any pregnant woman or her physician from performing an abortion
with the actual consent of the pregnant woman, with the consent of the
pregnant
woman implied by law in a medical emergency, or with the approval of one
otherwise authorized by law to consent to medical treatment on behalf of the
pregnant woman. An abortion that violates the conditions described in the
immediately preceding sentence may be punished as a violation of section
2903.01, 2903.02, 2903.03, 2903.04, 2903.05, 2903.06, 2903.08,
2903.11, 2903.12, 2903.13, 2903.14, 2903.21, or 2903.22 of the
Revised Code,
as applicable. An abortion that does not violate the conditions
described in the second immediately preceding sentence, but that does violate
section 2919.12, division (B) of section 2919.13, or section
2919.15
2919.151,
2919.17, or 2919.18 of the Revised Code, may be punished as
a
violation of section 2919.12, division (B) of section 2919.13, or
section
2919.15 2919.151, 2919.17, or 2919.18 of the Revised Code, as
applicable. (2) In a manner so that the offense is applied or
is 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 results in any of the
following: (a) Her delivery of a stillborn baby; (b) Her causing, in any other manner, the death in
utero of an unborn that she is carrying; (c) Her causing the death of her child who is born
alive but who dies from one or more injuries that are sustained while the
child is an unborn; (d) Her causing her child who is born alive to
sustain one or more injuries while the child is an unborn; (e) Her causing, threatening to cause, or attempting
to cause, in any other manner, an injury, illness, or other physiological
impairment, regardless of its duration or gravity, or a mental illness or
condition, regardless of its duration or gravity, to an unborn
that she is carrying. Sec. 2919.151. (A) As used in this section: (1) "Dilation and evacuation procedure of abortion" does not include the
dilation and extraction procedure of abortion. (2) "From the body of the mother" means that the portion of the fetus'
body
in
question is beyond the mother's vaginal
introitus in a vaginal delivery. (3) "Partial birth procedure" means the medical procedure that
includes all of the following elements in sequence: (a) Intentional dilation of the cervix of a pregnant woman,
usually
over a sequence of days; (b) In a breEch presentation, intentional extraction of at least
the lower
torso to the navel, but not the entire body, of an intact fetus from the body
of the mother, or in a
cephalic presentation, intentional
extraction of at least the complete head,
but not the entire body, of an intact fetus from the
body
of the mother; (c) Intentional partial evacuation of the intracranial contents
of the
fetus, which procedure the person performing the procedure knows will cause
the death of the fetus, intentional compression of the head of the fetus,
which procedure
the person performing the procedure knows will cause the death of the fetus,
or
performance of another intentional act that the person performing the
procedure
knows will cause the death of
the fetus; (d) Completion of the vaginal delivery of the fetus. (4) "Partially born" means that the portion of the body of an intact fetus
described in division (A)(3)(b) of this section
has been intentionally extracted from the body of the mother. (5) "Serious risk of the substantial and irreversible impairment
of a major bodily function" means any medically diagnosed condition that
so complicates the pregnancy of the woman as to directly or
indirectly cause the substantial and irreversible impairment of a
major bodily function. (6) "Viable" has the same meaning as in section 2901.01 of the
Revised
Code. (B) When the fetus that is the subject of the procedure is
viable, no person shall knowingly perform a partial birth
procedure on a pregnant woman when the procedure is not necessary,
in reasonable medical judgment, to preserve the life or health of
the mother as a result of the mother's life or health being
endangered by a serious risk of the substantial and irreversible
impairment of a major bodily function. (C) When the fetus that is the subject of the procedure is not
viable, no person shall knowingly perform a partial birth procedure on a
pregnant woman when the procedure is not necessary, in
reasonable medical judgment, to preserve the life or health of
the mother as a result of the mother's life or health being
endangered by a serious risk of the substantial and irreversible
impairment of a major bodily function. (D) Whoever violates division (B) or (C) of
this section is
guilty of
partial birth feticide, a felony of the second degree. (E) A pregnant woman
upon whom a partial birth procedure is performed in violation of division
(B) or (C) of this section is not guilty of
committing, attempting to commit, complicity in the commission of, or
conspiracy in the commission
of a violation of those divisions. (F) This section does not prohibit the suction curettage
procedure of abortion, the suction
aspiration procedure of abortion, or the dilation and evacuation procedure of
abortion. (G) This section does not apply to any person who performs or
attempts to perform a legal abortion if the act that causes the death of the
fetus is performed prior to the fetus being partially born even
though the death of the fetus occurs after it is partially born. SECTION 2 . That existing sections 2901.01 and 2903.09 and sections
2307.51 and 2919.15 of the Revised Code
are hereby repealed.
SECTION 3 . The General Assembly declares all of the following:
(A) In enacting sections 2307.53 and 2919.151 of the Revised Code,
its intent is to prevent the unnecessary death of fetuses when
they are substantially outside the body of the mother. (B) This intent is based in part on a state interest in
maintaining a strong public policy against infanticide, regardless
of the life expectancy or stage of development of the child. (C) The right to abortion established in Roe v. Wade (1973), 410
U.S. 113, was never intended to legitimize infanticide or to deprive the state
of all ability to
protect fetuses who are substantially outside the body of the mother. (D) The act also furthers the state interest in preventing
unnecessary cruelty. This interest is not necessarily based
solely on the ability of the fetus or child to experience pain.
The indignity of being partly delivered before being deliberately
killed is also a form of cruelty that should not be unnecessarily
inflicted upon any being of human origin. Therefore, there are
legitimate reasons for deterring the unnecessary use of
the partial birth procedure, even though other abortion procedures that may
cause
pain
remain available.
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