Tuesday, September 26, 2017

Ohio Bill to Help Teen Moms Falls Short, Requires Amendment

One of the more disturbing articles I've read this week comes from an Ohio affiliate of National Public Radio, and it is entitled "Unaccompanied In Pain: Gaps In Ohio Law Hurt Teen Moms." It describes how pregnant teens who are estranged from their families are caught in a horrific legal loophole: without the consent of their absent parents or guardians, they cannot obtain epidurals or C-sections. That is, to put it mildly, incredibly troubling. But the article concludes on a hopeful note: there is a bill in the Ohio legislature to address this issue.

As a lawyer, I was interested to examine the approach the bill takes. Unfortunately, I found that House Bill 302 is a poorly drafted piece of legislation. It defines "health care" in a way that does not clearly include epidurals—but which very well could be interpreted to include abortions. All it takes is one activist judge. 

Here's the language in question:
(A) As used in this section, "health care" means only treatment or services intended to maintain the life or improve the health of either a pregnant minor or the unborn child she is carrying.
(B) Notwithstanding any other provision of law to the contrary, a minor may consent to receive prenatal health care, health care during delivery, and post-delivery health care. Such care includes family planning services. Such consent is not subject to disaffirmance because the minor has not reached the age of majority. The consent of any other person is not needed to authorize the provision of health care under this section...
"Health care" is defined, but "health" is not. Does an epidural "improve the health of ... a pregnant minor"? Or is short-term pain management a matter of personal preference rather than health? I have an opinion, and you probably do too, but it doesn't matter: as long as the bill is silent on the question, it's left to the case-by-case judgment of the doctor. The goal here is to allow all teen moms to obtain epidurals, including those who would be physically safe without one. This legislative drafting falls short of that goal and must be amended.

But the definition of "health" has a long history in another context: abortion. The Supreme Court has defined abortion for "health" reasons to include "all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the wellbeing of the patient." (In other words, an abortion for a legal "health" reason may be indistinguishable from an elective abortion for socioeconomic reasons.) If a judge uses this definition of "health" to interpret House Bill 302, Ohio's parental consent law on abortion would be totally eviscerated; remember, under this bill, a pregnant minor may obtain "health" services "notwithstanding any other provision of law to the contrary." 

The statement "Such care includes family planning services" is troubling for the same reason. There is a long history of abortion advocates trying to include abortion in the definition of "family planning," and the term "family planning" is not defined in the bill.

It's ironic that a bill which aims to support teen mothers, and which uses the phrase "unborn child" multiple times, could wind up having a pro-abortion effect. Happily, there's a simple fix. The bill already contains a paragraph which provides: "Nothing in this section abrogates or limits any person's responsibility under section 2151.421 of the Revised Code to report child abuse..." which is of course crucial. A similar paragraph could provide assurance that House Bill 302 does not abrogate or limit Ohio's parental consent law on abortion.

But this is where it gets dark. The bill has two primary sponsors and nine co-sponsors. Both primary sponsors and seven of the nine co-sponsors are endorsed by NARAL Pro-Choice Ohio. This raises the possibility that the bill is not poorly drafted at all, but a Trojan horse.

Capitalizing on pro-life compassion for teen moms in pain, and tricking pro-life legislators into thinking this is a fine bill by using the phrase "unborn child," would be a low blow indeed. But I can't put it past them; remember, this is the same NARAL affiliate that defended an abortion committed on a woman too high on drugs to consent.

I kind of have to admire the sick genius of it. Any pro-life opposition to this bill will result in an immediate "war on women" responsedespite the fact that the bill doesn't even guarantee teens access to epidurals like it's supposed to. They're counting on low-information voters to look no further. Therefore we must tread carefully. This bill requires amendment, not outright rejection. It is poorly drafted and more likely to result in abortions than in epidurals. Stay on message.

The Ohio legislature has a strong pro-life majority. If we are disciplined, we can transform House Bill 302 into the pro-life, pro-woman legislation it needs to be. Ohio's teen moms are counting on us.

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