OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
S.B. 23 Final Analysis
133rd General Assembly
Click here for S.B. 23’s Fiscal Note
Version: As Passed by the General Assembly
Primary Sponsor: Sen. Roegner
Effective date: July 11, 2019
Effective Date:
Chenwei Zhang, Attorney
SUMMARY
Act name
 Provides that most of the R.C. sections amended and enacted in the act are to be known
as the “Human Rights and Heartbeat Protection Act.”
Abortion prohibited when there is a fetal heartbeat
 Generally prohibits a person from knowingly and purposefully performing or inducing an
abortion with the specific intent of causing or abetting the termination of the life of an
unborn human individual whose fetal heartbeat has been detected.
 Provides that a person who violates the above prohibition is guilty of performing or
inducing an abortion after the detection of a fetal heartbeat, a felony of the fifth degree.
 Provides that a physician is not in violation of the above prohibition if that physician
performs a medical procedure designed to or intended to prevent the death of a
pregnant woman or prevent a serious risk of substantial and irreversible impairment of
a major bodily function of the pregnant woman.
 Provides that a person is not in violation of the prohibition if that person has performed
an examination for the presence of a fetal heartbeat and the method used does not
reveal a fetal heartbeat.
 Provides that the prohibition does not repeal or limit any other provision of law that
restricts or regulates the performance or inducement of an abortion by a particular
method or during a particular stage of pregnancy.
 Requires a pregnant woman whose unborn human individual’s fetal heartbeat has been
detected to sign a form acknowledging that she has received the following information
from the person intending to perform the abortion: (1) that the unborn human
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individual has a fetal heartbeat, and (2) the statistical probability of bringing that
individual to term.
Abortion prohibited before determining fetal heartbeat
 Provides that a person who knowingly and purposefully performs or induces an abortion
before determining if there is a fetal heartbeat is guilty of performing or inducing
abortion before determining whether there is a detectable fetal heartbeat, a felony of
the fifth degree.
 Provides that a physician does not commit the offense if the physician performs or
induces an abortion believing that a medical emergency exists.
 Provides that a person does not commit the offense if that person has performed an
examination for the presence of a fetal heartbeat and the method used does not reveal
a fetal heartbeat.
Wrongful death actions
 Requires a woman to be awarded court costs and reasonable attorney’s fees if she
prevails in a civil action for the wrongful death of her unborn child.
 Provides that a determination of unconstitutionality is a defense, if the suit is based on a
provision that a court of record has deemed unconstitutional.
 Requires that a defendant be awarded reasonable attorney fees if the action was
frivolous and the defendant was adversely affected.
Adoption promotion and support
 Creates the Joint Legislative Committee on Adoption Promotion and Support, comprised
of three House members and three Senate members, to ensure citizens are informed of
available adoption options in Ohio.
 Permits the Committee to review or study any matter that it considers relevant to the
adoption process in Ohio and grants the Committee the same powers as other standing
or select committees of the General Assembly.
State Medical Board enforcement
 Allows the State Medical Board to take disciplinary action for failure to comply with the
act’s requirements to make or maintain certain medical records or documents for a
pregnant woman regarding an abortion.
 Allows the State Medical Board to assess against a person a forfeiture of not more than
$20,000 for each abortion prohibition violation the act specifies.
Declaratory judgments and court orders
 Permits the Attorney General to apply to a state or federal court for a declaration that
the act’s provisions are constitutional, or an order lifting an injunction if one exists, if
federal abortion law changes.
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 Permits a county prosecutor with standing to apply to a state or federal court for the
above relief if the Attorney General fails to act within 30 days of the change.
Foster Care and Adoption Initiatives Fund
 Creates the custodial Foster Care and Adoption Initiatives Fund, comprised of the State
Medical Board forfeitures collected under the act, to provide funding for foster care and
adoption services and initiatives as determined by the Department of Job and Family
Services.
Other provisions
 Provides criminal immunity and immunity from civil liability to a pregnant woman on
whom an abortion is performed for a violation of the act’s and continuing law abortion
prohibitions.
 Makes several declarations of findings by the General Assembly regarding pregnancy
and fetal development.
 Requires the Department of Health to consult with independent health care experts
when producing materials that the Department must publish on its website to inform
pregnant women of the probable anatomical and physiological characteristics of a
zygote, blastocyte, embryo, or fetus at various gestational increments.
 Provides that the act’s provisions apply only to intrauterine pregnancies.
 Requires the Director of Health to adopt rules specifying the appropriate methods for
determining the presence of a fetal heartbeat based on standard medical practice, no
later than 120 days after the act’s effective date.
 Repeals the limitation that the rules specifying the appropriate method for determining
the presence of a fetal heartbeat “shall require only that an examination be performed
externally.”
 Requires a person to fulfill certain documentation requirements when the person
performs an abortion relating to the act’s provisions.
 Provides that nothing in the act prohibits the sale, use, prescription, or administration of
a drug, device, or chemical for contraceptive purposes.
 Provides that nothing in the act prohibits the sale, use, prescription, or administration of
a drug, device, or chemical for contraceptive purposes.
TABLE OF CONTENTS
Act name ......................................................................................................................................... 5
Abortion prohibited when there is a fetal heartbeat ..................................................................... 5
Exceptions to prohibition ............................................................................................................ 5
1. Medical procedures to prevent a woman’s death or bodily impairment .......................... 5
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2. No fetal heartbeat revealed ............................................................................................... 6
Relationship to other abortion laws............................................................................................ 6
Acknowledgment by pregnant woman ....................................................................................... 6
Abortion prohibited before determining fetal heartbeat .............................................................. 7
Exceptions ................................................................................................................................... 7
1. Medical emergency ............................................................................................................ 7
2. No fetal heartbeat revealed ............................................................................................... 7
Rulemaking requirements............................................................................................................... 8
Documentation for abortions to preserve a woman’s health ........................................................ 8
No prohibitions regarding contraception ....................................................................................... 9
Findings by the General Assembly .................................................................................................. 9
Applicability of the act .................................................................................................................. 10
Severability.................................................................................................................................... 10
Fetal heartbeat severability ...................................................................................................... 10
Universal severability ................................................................................................................ 10
Consultation with independent experts ....................................................................................... 11
Reporting requirement ................................................................................................................. 11
State Medical Board enforcement................................................................................................ 12
Documentation requirements for disciplinary action ............................................................... 12
Forfeitures ................................................................................................................................. 12
Declaratory judgments and court orders ..................................................................................... 13
Wrongful death action .................................................................................................................. 13
Circumstances supporting action .............................................................................................. 13
Recovery of court costs and attorney’s fees ............................................................................. 14
Unconstitutionality defense ...................................................................................................... 14
Pregnant woman not liable........................................................................................................... 14
Joint Legislative Committee on Adoption Promotion and Support .............................................. 15
Foster Care and Adoption Initiatives Fund ................................................................................... 15
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DETAILED ANALYSIS
Act name
The act provides that most of the Revised Code provisions that it amends and enacts are
known as the “Human Rights and Heartbeat Protection Act” and references the name in the
title.1
Abortion prohibited when there is a fetal heartbeat
The act generally prohibits a person from knowingly and purposefully performing or
inducing an abortion on a pregnant woman with the specific intent of causing or abetting the
termination of the life of the unborn human individual that the pregnant woman is carrying and
whose fetal heartbeat has been detected in accordance with the act’s requirements. Whoever
violates this prohibition is guilty of performing or inducing an abortion after the detection of a
fetal heartbeat, a felony of the fifth degree.2
Under continuing law, abortions still are prohibited after the fetus reaches (1) the
probable post-fertilization age of 20 weeks or greater or (2) viability (which generally means the
fetus has realistic possibility of living outside the womb; the law presumes fetus viability is at 24
weeks gestation).3 These two prohibitions, however, have no real effect because the act
prohibits abortions at an earlier stage of pregnancy. Before the act, an abortion could have
been performed any time before 20 weeks gestation or viability.
Exceptions to prohibition
As described below, there are two circumstances in which the fetal heartbeat
prohibition does not apply or is not violated.
1. Medical procedures to prevent a woman’s death or bodily
impairment
The prohibition does not apply to a physician who performs a medical procedure
designed or intended, in that physician’s reasonable medical judgment, to prevent the death or
a serious risk of the substantial and irreversible impairment of a major bodily function of the
pregnant woman.4
Under law retained by the act, a “serious risk of the substantial and irreversible
impairment of a major bodily function” is defined as any medically diagnosed condition that so
complicates the pregnancy of the woman as to directly or indirectly cause the substantial and
1
R.C. 2919.1913.
2
R.C. 2919.195(A).
3
R.C. 2919.194 (renumbered from R.C. 2919.192 under the act); R.C. 2919.16(M), 2919.17(A) and (E),
and 2919.201, none of which are in the act.
4
R.C. 2919.195(B).
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irreversible impairment of a major bodily function. These conditions include pre-eclampsia,
inevitable abortion, and premature rupture of the membranes. It may also include diabetes and
multiple sclerosis. It does not include a condition related to the woman’s mental health.5
A physician in this circumstance must declare in writing that the medical procedure is
necessary, to the best of that physician’s reasonable medical judgment, to prevent the death or
a serious risk of the substantial and irreversible impairment of a major bodily function of the
pregnant woman. The physician must specify the medical condition that the procedure will
assertedly address and the medical rationale for the conclusion that the procedure is necessary.
The physician must place the written documentation in the pregnant woman’s medical records
and maintain a copy of it in the physician’s own records for at least seven years.6
2. No fetal heartbeat revealed
A person who has performed an examination for the presence of a fetal heartbeat in
accordance with the person’s good-faith understanding of standard medical practice and using
a detection method provided by rule adopted by the Director of Health is not in violation of the
prohibition if the exam does not reveal a fetal heartbeat.7
Relationship to other abortion laws
The act declares that the prohibition against knowingly and purposefully performing or
inducing an abortion when there is a fetal heartbeat does not repeal or limit any other
provision of the Revised Code that restricts or regulates the performance or inducement of an
abortion by a particular method or during a particular state of a pregnancy. 8
Under continuing law, retained by the act, “pregnancy” is defined as the human female
reproductive condition that begins with fertilization, when the woman is carrying the
developing human offspring, and that is calculated from the first day of the last menstrual
period of the woman.9
Acknowledgment by pregnant woman
If the person who intends to perform or induce an abortion on a pregnant woman
detects a fetal heartbeat in the unborn human individual, the act requires the pregnant woman
to sign a form acknowledging that she has received information from the person intending to
perform or induce the abortion that the unborn human individual that the woman is carrying
has a fetal heartbeat and that she is aware of the statistical probability of bringing the unborn
human individual to term. The act also provides that “notwithstanding” this acknowledgement
requirement, the person who intends to perform or induce an abortion cannot do so without at
5
R.C. 2919.19(A)(12); R