Within hours of the U.S. Supreme Court’s decision overturning Roe v. Wade, Ohio’s Heartbeat Bill, originally passed in 2019, became effective when the U.S. District Court, Southern District of Ohio, lifted its long pending injunction against the Ohio law. These sudden changes, accompanied by an even more recent Executive Order, Emergency Medical Treatment and Labor Act (EMTALA) guidance, and a release from the Ohio Attorney General, have created an uncertain environment for Ohio providers, patients, and the facilities where they receive care. This alert provides a summary and links to the authority on these topics:

What is Ohio’s Heartbeat Law?

This law had an original effective date of July 11, 2019, and stems from SB 23. The law prohibits the performance of an abortion of an intrauterine pregnancy in Ohio when 1) a fetal heartbeat is present; or 2) no determination is made as to whether there is a detectable fetal heartbeat.

Fetal Heartbeat Testing and Documentation:

The Ohio law, as its name suggests, focuses on testing for the presence of a fetal heartbeat. As to this examination, the law also requires that the methodology used be consistent with any rules adopted by the Ohio Department of Health (ODH). Such rules were adopted by emergency order signed by Gov. Mike DeWine effective June 24, 2022, and require that the examination meet the following minimum requirements:

1. Any person who intends to perform or induce an abortion on a pregnant woman is required to use real-time ultrasound equipment with a transducer of appropriate frequency.

2. Prior to performing or inducing an abortion, a person is required to determine the presence of a fetal heartbeat by using properly maintained and functioning ultrasound equipment. OAC 3701-47-07.

The ODH emergency rules also require medical record documentation of the estimated gestational age, the testing methodology used, the date and time of the test and the test results. This same information must also be reported and filed with ODH on a confidential abortion report.

Ohio Exceptions and EMTALA Preemption:

The exceptions to the Ohio law do not include abortions arising from rape or incest, but do include a qualifying “medical emergency” which include abortions necessary to prevent the death of the mother and those that are necessary to prevent the serious risk of the substantial and irreversible impairment of a major bodily function of the mother.  Additionally, as the law only applies to intrauterine pregnancies, Ohio law does not prohibit the abortion of an ectopic or tubal pregnancy. These exceptions were the subject of Ohio Attorney General Dave Yost’s July 14 Explainer Regarding Ohio’s Heartbeat Law Exceptions (available here).

Relevant to Ohio’s exceptions, CMS issued clarifying Emergency Medical Treatment and Labor Act (EMTALA) guidance on July 11, 2022 (link here). This guidance reinforced the obligations from EMTALA to provide appropriate medical screening and stabilizing treatment when an emergency medical condition is found to exist. The guidance issued further reminder that the obligations from EMTALA are federal law which preempt state laws that are more restrictive such that EMTALA may require an abortion be performed even when the performance of the abortion is prohibited under a more restrictive state law. HHS Secretary Xavier Becerra addressed this point of EMTALA preemption directly in his July 11, 2022 letter to health care providers:

Thus, if a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.

In the days following the issuance of the Reinforcement of EMTALA Obligations, Ohio Attorney General Yost issued his Explainer Regarding Ohio’s Heartbeat Law Exceptions that did not address the issue of EMTALA preemption.

Scope of Ohio Law:

Notably the law creates penalties and obligations on the persons performing abortions and not on the woman receiving the abortion as the law provides the woman with immunity from civil and criminal liability for any violations.

Penalty:

Ohio’s Heartbeat Law sets forth a number of legal penalties in the event of a violation that include the following:

Criminal: It is a 5^th degree felony to “knowingly and purposefully” perform an abortion when a fetal heartbeat is present or without making such determination.

Civil: Civil action is authorized for women on whom an abortion was performed in violation of this law or for those who did not receive disclosures required by the law. An award of damages, costs, and attorney’s fees is mandatory.

Administrative: For physicians, the law authorizes State Medical Board of Ohio to take disciplinary action against a physician who performs an abortion in violation of the Heartbeat Law. Such disciplinary action may include fines of up to $20,000 per violation.

The reversal of Roe and the sudden effectiveness of Ohio’s Heartbeat Law have created much uncertainty.  We expect additional state and federal legal guidance will be issued in the coming months.