Codifying anti-choice language into the law: Ohio’s ‘unborn’

Ohio has some extremely stringent abortion restrictions, thanks to conservative leanings in the state and aggressive abortion bills that anti-choice legislators are unafraid to introduce over and over until they pass. To receive an abortion in the state, patients must get counseling that ‘discourages‘ abortion, and cannot undergo the procedure on the same day, which forces them to make two trips. Health insurance through public exchanges and employee plans only covers abortion in very limited circumstances, parental consent is required for minors, the state dictates how to perform medication abortion, and ultrasound is effectively required because providers have to find a foetal heartbeat, though thankfully patients aren’t required to view it. When it comes to anti-choice climates, Ohio isn’t the worst, but it’s not the best, either.

That climate reflects the control conservatives have on reproductive rights in the United States, but that control manifests in some sinister ways. Some of those ways are found right in Ohio’s codes — and I’m not talking about the literal laws that determine how and when patients can receive abortions, but in the very language of those codes. The state doesn’t use value-neutral language when it discusses abortion: In fact, across the legal language used to discuss abortion and pregnancy, it refers to foetuses as ‘unborn,’ repeating terminology that anti-choicers are particularly fond of.

In documents supposedly intended to be neutral guidelines that dictate the conduct of society, Ohio is codifying the notion that abortion kills babies, and it’s creating a strong stigma against abortion. It’s also setting the stage for future restrictions by presenting justifications: Ohio protects unborns. It believes so strongly that abortion is wrong that in addition to passing laws limiting reproductive autonomy for pregnant patients, it also uses very politically charged language to do so.

See Ohio Code § 2901.01 (B) (1) (A) (ii), which grants foetal personhood. The law further informs the reader that:

‘Unborn human’ means an individual organism of the species Homo sapiens from fertilization until live birth. (Ohio Code § 2901.01 (B) (1) (C) (i))

This sets a rather striking tone. Ohio lawmakers have specifically said that a foetus is a human from the moment of fertilization (not implantation, even) until birth, and this language is used as the foundation of a number of laws, like Ohio Code § 2903.13, which codifies ‘assault’ as including ‘unborns.’ Similar language appears in codes discussing aggravated, motor vehicle, and felonious assault — the law clearly stresses that any assault that results in termination of a pregnancy carries additional penalties. Similar laws are present in many states, including California. Known as foetal homicide laws, they create a complex legal and social dilemma. On the one hand, they recognise the emotional and physical stress of losing a wanted pregnancy in the course of an assault. On the other, they present a foetus as a human being, which establishes a precedent for treating abortion like homicide — hence distinctions under some laws between ‘unlawful abortion’ (i.e. foetal homicide) and a legitimate medical procedure.

Lawmakers have to come up with some kind of terminology to describe foetuses, because they do come up in legal contexts — as for example in laws regulating abortion, whether they’re intended to facilitate safe and effective abortion care, or to restrict access, as in the case of Ohio Code § 1919.17 (B) (2), which explicitly prohibits abortion of ‘viable’ (24 weeks or greater according to the state’s definition) foetuses in cases where a pregnancy endangers the mental health of the patient. The mandate that physicians submit reports when they perform pregnancy terminations again references ‘unborns,’ creating a situation where medical practitioners performing a requested medical procedure are effectively being asked to self-report homicide, even though abortion is nothing of the kind.

Ohio isn’t the only state that codifies anti-choice language right into the law, and that’s a big victory for the anti-choice movement, which likes to see legislation that affirms its views about abortion. There’s no reason the state couldn’t pass identical laws with ‘foetus’ instead of ‘unborn.’ Those laws would still be unfairly restrictive and onerous for patients and care providers alike, but they wouldn’t be worded in a way that shames people and creates a gateway to treating any kind of pregnancy termination, including miscarriages, as a homicide. What happens when an ‘unborn’ fails to implant, as happens in a very large percentage of pregnancies? According to the state, the pregnant patient (worth less than the foetus) could be considered a killer for failing to host an adequately friendly environment — or for engaging in activities the state believes harm pregnancies, even if the failure of the pregnancy has nothing to do with it.

The language used in legal settings matters. It crystallises beliefs and attitudes about people and society, on a conscious and subconscious level. Look, for example, to the fight to remove disablist language from state code, with terms like ‘moron’ and ‘imbecile’ lingering on the books in some states, reinforcing the idea that developmentally, intellectually, and cognitively disabled people are worth less than their peers. When coded dogwhistles like these appear in formal legal code, they matter — to those who reinforce and adjudicate the law, to the people who find themselves under legal scrutiny, to citizens who abide by it. In states where this kind of language is on the book, legislators are laying the groundwork for a tighter and tighter cinch on abortion rights.

Image: Ohio Welcomes You, Liz Castro, Flickr