OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
S.B. 157 Final Analysis
134th General Assembly
Click here for S.B. 157’s Fiscal Note
Version: As Passed by the General Assembly
Primary Sponsors: Sens. Johnson and S. Huffman
Effective date: March 23, 2022
Effective Date:
Emma Carroll, Research Analyst
SUMMARY
Abortion manslaughter
Expands the crime of abortion manslaughter to include failure to take measures to
preserve the health of a child born alive after abortion.
Authorizes an affected woman to sue a person guilty of abortion manslaughter.
Children born alive after abortion or attempted abortion in
nonhospital settings
Requires a physician who performs or attempts an abortion in a nonhospital setting to
immediately provide specified newborn care if a child is born alive.
Child survival reporting requirements
Requires the Director of Health to develop a child survival form that an attending
physician must complete each time a child is born alive after an abortion or attempted
abortion.
Specifies that a completed child survival form becomes part of the medical record an
abortion facility maintains on the woman who is the subject of the form, and is not a
public record.
Requires each facility in which a child was born alive following an abortion or attempted
abortion to submit monthly and annual reports to the Department of Health.
Requires the Department to issue annual reports summarizing the data in the facility
reports.
December 29, 2021
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Criminal penalties and civil action
Specifies criminal penalties for failure to comply with the child survival form and
reporting requirements.
Authorizes an affected woman to sue a physician or facility for failure to comply with
the child survival form and reporting requirements.
Variances from written transfer agreements
Regarding variances from the written transfer agreement requirement that applies to
ambulatory surgical facilities, requires each consulting physician to attest that:
The physician does not teach or provide instruction at a medical school affiliated
with a state university or college, a state hospital, or other public institution;
The physician is not employed by, compensated by, and does not provide instruction
or consultation to, those institutions.
Prohibits a consulting physician from engaging in the above activities while serving as a
consulting physician for a facility with an approved variance.
Requires the Director of Health to rescind a facility’s variance if the consulting physician
engages in the above activities.
Requires each facility with an existing variance to demonstrate compliance with the
act’s requirements by June 21, 2022, or the Director must rescind the variance.
DETAILED ANALYSIS
Abortion manslaughter
Under continuing law, a person who does either of the following is guilty of abortion
manslaughter, a first degree felony:
1. Purposely takes the life of a child born by attempted abortion who is alive when
removed from the uterus of the pregnant woman; or
2. When performing an abortion, fails to take the measures required by the exercise of
medical judgment in light of the attending circumstances to preserve the life of a child
who is alive when removed from the uterus of the pregnant woman.
The act modifies the second basis for this offense by (a) requiring that the failure be
purposely done and (b) specifying that this offense also applies to a failure to take the measures
required to preserve the health of the child who is born alive.
The act establishes new criminal offenses related to the second basis for this offense.
Under the act, it is abortion manslaughter, a first degree felony, if the child dies as a result of
the person’s failure to take the measures described above. It is a failure to render medical care
to an infant born alive, a first degree felony, if the child survives notwithstanding the person’s
failure to take the required measures.
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The act authorizes a woman on whom an abortion is performed or attempted to file a
lawsuit against a person who commits abortion manslaughter. A woman who prevails in such a
lawsuit must receive compensatory and exemplary damages in an amount determined by the
trier of fact, court costs, and reasonable attorney’s fees.1
Post-birth physician care in nonhospital settings
The act requires a physician who performs or attempts an abortion in which a child is
born alive in an ambulatory surgical facility or other location that is not a hospital to
immediately take the following steps upon the child’s birth:2
Provide post-birth care to the newborn in accordance with prevailing and acceptable
standards of care;
Call for assistance from an emergency medical services provider; and
Arrange for the transfer of the newborn to a hospital.
A physician who fails to comply with this requirement is subject to disciplinary action by
the State Medical Board.3
Child survival form
Development
The act requires the Director of Health to develop a child survival form to be submitted
to the Department of Health (ODH) each time a child is born alive after an abortion or
attempted abortion. In developing the form, the Director may consult with obstetricians,
maternal-fetal specialists, and any other professionals the Director considers appropriate. The
form must include areas for all of the following to be provided:4
The patient number for the woman on whom the abortion was performed or
attempted;
The name, primary business address, and signature of the attending physician who
performed or attempted to perform the abortion;
The name and address of the facility in which the abortion was performed or attempted,
and whether the facility is a hospital, ambulatory surgical facility, physician’s office, or
other facility;
The date the abortion was performed or attempted;
1 R.C. 2919.13.
2 R.C. 4731.911
3 R.C. 4731.22(B)(54).
4 R.C. 3701.792(A).
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The type of abortion procedure that was performed or attempted;
The gestational age of the child who was born;
Complications, by type, for both the woman and child; and
Any other information the Director considers appropriate.
Physician duties
The act requires the attending physician who performed or attempted an abortion in
which a child was born alive to complete a child survival form. The physician must submit the
completed form to ODH not later than 15 days after the woman is discharged from the facility.5
This requirement is in addition to the continuing requirement that a physician who performs an
abortion must complete an individual abortion report for each abortion the physician
performs.6
Confidentiality; medical record
The act specifies that a completed child survival form is confidential and not a public
record. It must be made part of the medical record maintained for the woman by the facility in
which the abortion was performed or attempted.7
Abortion facility reports
The act requires each facility in which an abortion is performed or attempted and in
which a child was born alive to submit monthly and annual reports to ODH. The reports must
specify the total number of women on whom an abortion was performed or attempted at the
facility in which a child was born alive, delineated by the type of abortion procedure. The
facility must submit the annual report after June 30 (the end of the state’s fiscal year). Each
monthly or annual report must be submitted not later than 30 days after the end of the
reporting period.8
Criminal penalties
A person who purposely fails to comply with the child survival form or abortion facility
reporting requirements is guilty of a third degree felony.9
Civil action
The act authorizes a woman on whom an abortion is performed or attempted to file a
civil lawsuit against a physician or facility that violates the act’s requirements regarding child
5 R.C. 3701.792(B).
6 R.C. 3701.79(C).
7 R.C. 3701.792(B) and (C).
8 R.C. 3701.792(D).
9 R.C. 3701.792(F) and (G) and 3701.99(D).
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survival forms and reporting. If she prevails, she must receive from that physician or facility
$10,000 in damages, court costs, and reasonable attorney’s fees.10
Department of Health annual reports
The act requires ODH, by October 1 each year, to issue a report regarding data it has
received in the previous year from the facility reports described above. At a minimum, ODH’s
annual report must specify the number of women on whom an abortion was performed or
attempted in which a child was born alive, delineated by the type of abortion procedure and
the facility in which the procedure was performed or attempted. The act prohibits the report
from containing any information from which the identity of a woman on whom an abortion was
performed or attempted or any child could be ascertained.11
Variances from written transfer agreements
Continuing law requires each ambulatory surgical facility to have a written transfer
agreement with a local hospital establishing a transfer procedure for patients when additional
medical care is necessary. A facility can, however, apply to ODH for a variance if the transfer
agreement requirement will cause the facility undue hardship.12
As part of the variance application, the facility must include a letter, contract, or
memorandum of understanding signed by the facility and at least one consulting physician
agreeing to provide back-up coverage when medical care beyond the level the facility can
provide is necessary. The consulting physician must have admitting privileges at a local hospital
within 25 miles of the facility and must sign a statement attesting that the physician:
Actively practices clinical medicine within a 25-mile radius of the facility;
Is familiar with the facility and its operations; and
Agrees to provide notice to the facility of any changes in the physician’s ability to
provide back-up coverage.13
Consulting physician attestation
The act adds two more limitations on consulting physicians. In addition to the above, it
requires each consulting physician to attest to both of the following:
10 R.C. 3701.792(H).
11 R.C. 3701.792(E).
12 R.C. 3702.303 and 3702.304, not in the act.
13 R.C. 3702.304(B)(2) and (3).
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The physician does not teach or provide instruction at either a medical school or an
osteopathic medical school affiliated with a state university or college,14 any state
hospital, or other public institution; and
The physician is not employed by or compensated under a contract with, and does not
provide instruction or consultation to, any of those entities.15
The act prohibits a consulting physician from engaging in the above activities while
serving as a consulting physician for a facility that has been granted a variance. If a consulting
physician violates this prohibition, the Director of Health must rescind the variance.16
Existing variances
A facility with an existing variance must demonstrate compliance with the act’s
provisions by June 21, 2022 (90 days after the act’s effective date), or the Director of Health
must rescind the variance.17
Mileage requirement
The act makes a conforming change related to the distance between a facility and a
local hospital where a consulting physician has admitting privileges. H.B. 110 (the Main
Operating Budget) narrowed the distance to 25 miles, from 30 miles.18
HISTORY
Action Date
Introduced 04-13-21
Reported, S. Government Oversight & Reform 10-27-21
Passed Senate (25-6) 10-27-21
Reported, H. Families, Aging, & Human Services 12-08-21
Passed House (61-35) 12-08-21
Senate concurred in House amendments (24-7) 12-15-21
21-SB157-134/ts
14R.C. 3345.12, not in the act. State university or college means the University of Akron, Bowling Green
State University, Central State University, University of Cincinnati, Cleveland State University, Kent State
University, Miami University, Northeast Ohio Medical University, Ohio University, Ohio State University,
Shawnee State University, University of Toledo, Wright State University, and Youngstown State
University.
15 R.C. 3702.305(A).
16 R.C. 3702.305(B) and (C).
17 Section 3.
18 R.C. 3702.3010.
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As Passed by the General Assembly
Statutes affected: As Introduced: 2919.13, 3701.79, 3701.99, 4731.22
As Reported By Senate Committee: 2919.13, 3701.79, 3701.99, 3702.3010, 4731.22, 3702.305, 3702.3011
As Passed By Senate: 2919.13, 3701.79, 3701.99, 3702.3010, 4731.22, 3702.305, 3702.3011
As Reported By House Committee: 2919.13, 3701.79, 3701.99, 3702.3010, 4731.22, 3702.305, 3702.3011
As Passed By House: 2919.13, 3701.79, 3701.99, 3702.3010, 4731.22, 3702.305, 3702.3011
As Enrolled: 2919.13, 3701.79, 3701.99, 3702.3010, 4731.22, 3702.305, 3702.3011