Abstract

Excerpted From: Carolette Norwood, Forced to Birth: A Case Study of Ohio's Six-week Abortion Ban, its Impact on Black Women in Cincinnati and its Relevance for Reproductive Justice in Ohio and Beyond, 34 Health Matrix: Journal of Law-Medicine 331 (2024) (91 Footnotes) (Full Document)

The Ohio Senate introduced the Ohio six-week abortion ban in 2019 as “Senate Bill 23,” or the “Heartbeat Bill,” both rather innocuous names for a highly restrictive abortion law. However, the Heartbeat Bill remained dormant until the Supreme Court's decision to strike down Roe v. Wade. This law prohibits pregnant people from accessing abortion after medical professionals detect a fetal heartbeat, typically occurring at around six weeks of gestation. In other words, the Heartbeat Bill severely limits the timeframe within which people can legally access abortions. Despite the principles of the separation of church and state, religious anti-abortion advocates were the primary promoters of this legislation. These anti-abortion advocates are primarily driven by religious and moral beliefs concerning conception and “fetal rights” rather than considering the health and well-being of the birthing parent. Consequently, this ruling severely compromises a pregnant person's right to privacy and human right to bodily autonomy, including their reproductive “choice” to birth or not birth a child.

States implemented these preemptive statutes, also known as “trigger laws,” to limit abortion procedures in case the Supreme Court overruled its decision in Roe v. Wade. These trigger laws were a deliberate political strategy of conservative policymakers in Republican-leaning states beyond Ohio and across the nation. In fact, there were twenty-six states poised for a swift move to implement abortion bans following the overturning of Roe v. Wade. Thirteen of these states already had trigger laws in place, which would automatically take effect to restrict a pregnant person's access to abortion care. Furthermore, twenty-two states had enacted a variety of abortion bans in the event Roe was overturned. Among them, nine states still had pre-Roe bans in their legal statutes, and eleven states had court orders blocking early gestational age bans. In situations where multiple bans coexist within a state, state officials would determine which ban to enforce if Roe v. Wade were overturned. On June 24, 2022, the Supreme Court overturned Roe v. Wade, negating the constitutional right to access abortion. This ruling followed the examination of Mississippi's Gestational Age Act, which aimed to ban most abortions after fifteen weeks of pregnancy. The Gestational Age Act, signed into law in 2018, was initially blocked. In May 2021, the Supreme Court decided to review the case. They issued their final ruling on June 24, 2022. This ruling granted states discretion over reproductive rights.

The Ohio abortion ban, which limited abortions to the first six weeks of a pregnancy, went into effect on June 24, 2022. However, the Hamilton County Common Pleas Court successfully halted it on September 14, 2022, when Judge Christian Jenkins issued a preliminary injunction or temporary restraining order against the abortion ban. The injunction retained the legality of abortion in Ohio for up to twenty-two weeks. The legal and medical ambiguity in the post-Roe era has created unprecedented confusion surrounding how, when, and what healthcare medical providers can administer to pregnant persons, especially those who experience reproductive complications. Before the halt of the Ohio six-week abortion ban, it had distressing real-life effects, as a 10-year-old girl from Columbus, Ohio, had to traveled to Indiana to seek abortion care. The girl became pregnant at only nine years old. She had been raped by her mother's boyfriend, who was subsequently arrested and is now serving a life sentence. Despite the reality of this story, conservative anti-abortion lawmakers and pundits dismissed this tragic event as a hoax. The six-week abortion ban's impact was undeniable, as a vulnerable child was subject to additional distress from an already traumatizing event. Furthermore, this child faced the burden of traveling across state lines to access necessary medical care, expanding the time spent and attention drawn to seeking treatment. This heart-wrenching case shed light on the harsh reality faced by individuals who might otherwise be forced to birth in the absence of access and rights to abortion care.

Since the Dobbs decision, there have been a litany of cases where women have been forced to birth. Notably, women in Austin, Texas, sued the state because of the lack of clarity in anti-abortion laws. These women claimed that anti-abortion laws endanger their health and safety when faced with a pregnancy-induced medical emergency. Fifteen plaintiffs shared horrifying stories of being compelled to give birth from pregnancies that both they and their medical provider knew were not viable. These were stories of pregnancies that nearly cost women their lives and future reproductive health. Passed in 2021, in anticipation of the potential overturning of Roe v. Wade, the Texas trigger law makes performing an abortion a felony, with exceptions for cases involving a “life-threatening physical condition” or “a serious risk of substantial impairment of a major bodily function.” The implications of these anti-abortion laws have raised serious concerns about access to safe and timely reproductive healthcare.

Instances similar to those described above had a significant impact on the residents of Ohio, prompting them to advocate for the inclusion of abortion rights in the Ohio Constitution. Comparable efforts were in progress in states such as Kansas and Michigan. However, in an attempt to complicate the process for voters seeking to amend the constitution, Republican lawmakers orchestrated a special election, introducing “Issue 1.” This proposal aimed to raise the threshold for the approval of an Ohio Constitutional Amendment from 50% to 60%. On August 8, 2023, Ohioans exercised their right to vote and decisively rejected the Republican proposal for a supermajority requirement to pass future constitutional amendments by a margin of 57.01% to 42.99%.

The following is a case study, derived from research conducted for the Ohio Policy Evaluation Network (OPEN) from 2018 to 2022, providing evidence that even before the overturning of Roe v. Wade, not all pregnant individuals in the U.S. were able to enjoy the right to abortion, particularly those who were indigent or residing in rural communities. This case study emphasizes that, while abortion is a necessary human right, reproductive justice extends beyond the discourse of mere “choice.”

Reproductive justice, operating within a human rights framework, encompasses more than just abortion. It delves into issues of bodily and parental autonomy, the freedom to choose whether to have or not have a child, and the right to parent that child in a safe environment. Using the case-study method, this study illustrates the importance of access to care, not just choice. If individuals cannot afford reproductive care or cannot physically reach necessary reproductive care services, the concept of choice becomes inconsequential. Reproductive justice advocates aim to address and rectify these disparities in access and resources to ensure all individuals can make informed and autonomous decisions about their reproductive health.

[. . .]

Birthing Justice has never been a reality for Black women in these United States as painstakingly chronicled in Dorothy Robert's Killing the Black Body: Race, Reproduction, and the Meaning of Liberty or Deidre Cooper Owen's Medical Bondage: Race, Gender, and the Origins of American Gynecology. Despite being in the 21 century, as Aaliyah's case study compellingly highlights, this basic human right remains aspirational. The recent fall of Roe v. Wade has prompted reproductive justice advocates to swiftly strategize ways to navigate the newly imposed barriers from the Dobbs decision, which restricts women's legal and medical access to abortion.

A dedicated network of reproductive justice advocates is tirelessly working nationwide to ensure that women, regardless of their location, can still access essential abortion care services. Key objectives include raising funds to cover travel and procedural costs, along with reviving an underground railroad for reproductive freedom, as previously documented in Janessa L. Bernstein's work. These endeavors are crucial in safeguarding women from being coerced into being forced to birth.

Ohioans exercised their voting power on August 8, 2023, to maintain a simple majority for potential future constitutional amendments. Additionally, in the upcoming November 2023 election, voters will decide whether to enshrine the right to a legal abortion in the state's constitution. In times of uncertainty, it is essential to heed the wise words of Black feminist Mariame Kaba, who reminds us that “hope is a discipline.”

With this in mind, I conclude with the poem “Hope in A Weary Throat” by Pauli Murray.

Give me a song of hope And give me a world where I can sing it.

Give me a song of faith

And a people to believe in it.

Give me a song of kindness

And a country where I can live it.

Give me a song of hope and love

And a brown girl's heart to hear it.

May we hold onto hope and determination in our pursuit of true Birthing Justice for all women and birthing persons.

On November 8, 2023, Ohioans voted to affirm an amendment to make abortion care a constitutional right.

Carolette Norwood is professor and department head of Sociology and Criminology at Howard University. Dr. Norwood is a Black feminist sociologist whose research explores the implications of violence (structural, spatial, and interpersonal) at the intersections of race, gender, class, sexuality, and space on reproductive and sexual health injustice for Black women