OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 378 Bill Analysis
134th General Assembly
Click here for S.B. 155’s Fiscal Note
Version: As Introduced
Primary Sponsors: Reps. Koehler and Fowler Arthur
Effective Date:
Chenwei Zhang, Attorney
SUMMARY
Requires the Department of Health to publish on its website both of the following:
Materials designed to inform a pregnant woman of the possibility of reversing the
effects of an abortion that utilizes mifepristone if she changes her mind;
Materials regarding information on and assistance with the resources that may be
available to help reverse the effects of an abortion that utilizes mifepristone.
Requires a physician who is to perform or induce a mifepristone abortion, at least
24 hours prior to the performance or inducement of the abortion, to give the pregnant
woman copies of the materials required to be published by the Department, and
subjects the physician to civil or disciplinary action for failure to do this.
Creates the crime of failure to disclose the reversibility of a mifespristone abortion, a
first degree misdemeanor on a first offense and a fourth degree felony on each
subsequent offense.
If the crime is committed, permits the pregnant woman to file a civil action for the
wrongful death of the woman’s unborn child.
DETAILED ANALYSIS
Overview
The bill enacts both civil and criminal provisions that require physicians to inform
pregnant women, before inducing or performing a mifepristone abortion, of the possibility of
reversing the effects of a mifepristone abortion. The bill also requires the physician to provide
the pregnant woman with information on and assistance with resources that may help reverse
the effects of a mifepristone abortion. Mifepristone, also known as RU-486, is a drug used
during the early part of a pregnancy to cause an abortion.
September 17, 2021
Office of Research and Drafting LSC Legislative Budget Office
Mifepristone abortion defined
The bill defines a mifespristone abortion as an abortion that involves a regimen of taking
mifepristone first, then one or more subsequent “dangerous drugs.” A “dangerous drug” is
defined in continuing law to include prescription drugs.1
Civil provisions
Department of Health to publish materials on its website
The bill requires the Department of Health to publish on its website both of the
following:
1. Materials designed to inform a pregnant woman of the possibility of reversing the
effects of an abortion that utilizes mifepristone if she changes her mind;
2. Information on and assistance with the resources that may be available to help reverse
the effects of an abortion that utilizes mifepristone.
The materials must be published in English and in Spanish, in a typeface large enough to
be clearly legible, and in an easily comprehensible format. The bill also requires the materials to
be developed in accordance with rules that the bill requires the Department to adopt in
accordance with R.C. 111.15, which does not require public hearings.2
Requirement of physician to give the materials to a pregnant woman
The bill requires a physician who is to perform or induce a mifepristone abortion, at
least 24 hours prior to the performance or inducement of the abortion, to give the pregnant
woman copies of the materials required to be published by the Department. The bill permits
the materials to be provided in person, by telephone, by certified mail, return receipt
requested, or by regular mail evidenced by a certificate of mailing.3
Civil and disciplinary consequences
A physician’s failure to give the pregnant woman the materials could be the basis for a
civil action or disciplinary action. In the case of a civil action, a physician who performs or
induces the mifepristone abortion with actual knowledge that the conditions specified in the
bill have not been satisfied or with a heedless indifference as to whether they have been
satisfied is liable in compensatory and exemplary damages to any person, or the representative
of the estate of any person who sustains injury, death, or loss to person or property as a result
of the failure to satisfy the bill’s conditions. The court may also enter any injunctive or other
equitable relief that it considers appropriate. Both of the following are affirmative defenses in a
civil action:
1 R.C. 2919.125(A) and (C) and 2317.56(A)(3); R.C. 4729.01, not in the bill.
2 R.C. 2317.56(C); R.C. 111.15, not in the bill.
3 R.C. 2317.56(B).
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As Introduced
Office of Research and Drafting LSC Legislative Budget Office
1. The mifepristone abortion was compelled by a medical emergency or medical necessity;
2. The physician made a good faith effort to satisfy the bill’s conditions.
The employer or other principal of the physician is not liable in damages for a civil action
unless the employer or principal had actual knowledge of, or, by the exercise of reasonable
diligence, should have known that an employee or agent performed or induced the
mifepristone abortion with actual knowledge that the bill’s conditions had not been satisfied or
with a heedless indifference as to whether the conditions had been satisfied. Or, the employer
or principal may be liable if the employer or principal negligently failed to secure the
compliance of an employee or agent.4
“Medical emergency” defined
The bill defines a “medical emergency” the same as its existing law definition under the
criminal provisions regarding post-viability abortions. Under that section, the term means a
condition that in the physician’s good faith medical judgment, based upon the facts known to
the physician at that time, so complicates the woman’s pregnancy as to necessitate the
immediate performance or inducement of an abortion in order to prevent the death of the
pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a
major bodily function of the pregnant woman that delay in the performance or inducement of
the abortion would create.5
Criminal provisions
Creation of crime
The bill also creates the crime of failure to disclose the reversibility of a mifespristone
abortion, a first degree misdemeanor on a first offense (up to 180 days of jail time and a
maximum $1,000 fine)6 and a fourth degree felony on each subsequent offense (definite prison
term ranging from 6 to 18 months and a maximum $5,000 fine).7 A physician is guilty of the
crime if the physician knowingly performs or induces a mifepristone abortion without the
physician or the physician’s agent doing both of the following:
1. At least 24 hours prior to providing the pregnant woman with mifepristone, informing
her that: (a) it may be possible to reverse the intended effects of a mifepristone
abortion if she changes her mind, but time is of the essence, and (b) information and
assistance with reversing the effects of the mifepristone abortion is available on the
Department of Health’s website;
4 R.C. 2317.56(E), (G), and (H)
5 R.C. 2919.125(B); R.C. 2919.16(F), not in the bill.
6 R.C. 2929.24 and 2929.28, not in the bill.
7 R.C. 2929.14 and 2929.18, not in the bill.
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As Introduced
Office of Research and Drafting LSC Legislative Budget Office
2. Immediately prior to providing the pregnant woman with mifepristone, providing her
with printed materials that include the following statement: “Recent developing
research has indicated that mifepristone alone is not always effective in ending a
pregnancy. It may be possible to avoid, cease, or even to reverse the intended effects of
an abortion utilizing mifepristone if the second pill has not been taken. Please consult
with a health care professional immediately.”
The crime does not apply if the physician believes that a medical emergency exists that
prevents compliance with the bill.
The bill states that it must not be construed to permit a physician to delegate the
performance or inducement of an abortion.8
Department of Health to adopt rules
The bill requires the Department of Health to adopt rules in accordance with R.C. 111.15
(which does not require public hearings) governing the information, assistance, and materials
that are required to be provided under the bill’s criminal provisions.9 The bill states that the
criminal prohibition does not apply until the Department of Health has placed on its website
information on reversing a mifepristone abortion, as required under the bill’s civil provisions.10
Pregnant woman may file a civil action if the crime is committed
The bill permits a woman on whom a mifepristone abortion is performed or induced in
violation of the bill’s criminal prohibition to file a civil action for the wrongful death of the
woman’s unborn child. She may receive, at her election and at any time prior to final judgment,
$10,000 in damages or an amount determined by the trier of fact after consideration of the
evidence. The bill specifies that in this situation, the evidence must be considered subject to the
same defenses and requirements of proof, except any requirements of live birth, as would
apply to a suit for the wrongful death of a child who had been born alive.11
Pregnant woman is not guilty or subject to civil penalties
The bill states that a pregnant woman on whom a mifepristone abortion is performed or
induced in violation of the bill’s criminal prohibition is not guilty of that crime, is not guilty of
attempting to commit, conspiring to commit, or complicity in committing that crime, and is not
subject to civil penalty based on the mifepristone abortion being performed or induced in
violation of the bill’s criminal prohibition.12
8 R.C. 2919.126(A), (B), (D), and (E). A corrective amendment may be necessary to R.C. 2919.126(A) to
change “No physician shall knowingly perform or induce a mifepristone abortion in a pregnant woman
[ . . . ]” to “[ . . . ] on a pregnant woman [ . . . ]” (emphasis added).
9 R.C. 2919.126(C).
10 Section 3.
11 R.C. 2919.128.
12 R.C. 2919.127.
P a g e |4 H.B. 378
As Introduced
Office of Research and Drafting LSC Legislative Budget Office
HISTORY
Action Date
Introduced 07-15-21
H0378-I-134/ec
P a g e |5 H.B. 378
As Introduced
Statutes affected: As Introduced: 2317.56