Commentary

Ohio AG’s refusal to guide doctors facing felony criminal charges is a massive failure of duty

Health care professionals under criminal threat need clarity, not gaslighting, from state’s chief legal officer

July 21, 2022 3:20 am

Ohio Attorney General Dave Yost. (Photo by Justin Merriman/Getty Images)

When Ohio Republicans created law putting health care professionals under the threat of felony criminal charges for providing abortion care, they made no exceptions for rape or incest, including in cases of children who’ve been sexually assaulted.

Republican Ohio Attorney General Dave Yost rushed to court on June 24, just after Roe v Wade was overturned, to implement the Ohio abortion ban, which was signed by Gov. Mike DeWine in 2019.

Last week, going on national television to cast doubt on the story of a 10-year-old rape victim who had to flee the state to Indiana for abortion care, Yost also claimed, “she did not have to leave Ohio to find treatment.”

In an analysis, the non-partisan Ohio Legislative Service Commission said the law makes no age-based exceptions.

“Ohio’s abortion prohibition applies regardless of the circumstances of conception or the age of the mother,” it said.

That conflicts with what Yost is now claiming.

But between April 2019 and July 2022, Yost — Ohio’s chief legal officer as attorney general — declined to legally vet and then offer clear guidance on the ban for health care providers. This week, his office doubled down on its refusal to provide such guidance.

“Please share with me where we are required to put out guidance on certain laws,” Ohio Attorney General spokesperson Bethany McCorkle said when asked why the AG’s Office hasn’t put out guidance for doctors facing the risk of felony criminal charges for doing their jobs. This, from the office that regularly puts out guidance on things such as senior citizens avoiding telephone scams.

McCorkle pointed to an “explainer” her office issued last Thursday. It discussed medical emergency exceptions in the law, but sheds no light on whether a 10-year-old would automatically be eligible for them.

The two exceptions to the abortion ban are:

  • “to prevent the death of the pregnant woman” or
  • “to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman”

Two OB-GYNs said that from a medical standpoint, there’s nothing that would make 10-year-olds as a group automatically eligible for abortion exceptions under the Ohio law for medical emergencies.

Such pregnancies are risky, they told the Capital Journal, but so are a lot of others, for patients of all ages.

In his position as attorney general, there are substantial steps Yost could take to clear up the confusion he helped create  — and the law more generally, said Maria Phillis, a Northeast Ohio OB-GYN.

He “could issue guidance to the state and its agencies and even the general public to say, ‘Hey, this is actually how this law should be applied,’” she told the Capital Journal. “So if he thinks just being 10 years old is a sufficient medical necessity to require an abortion, he can make that statement and make that clarifying guidance.

“He’s the attorney general. He can say, ‘We don’t think we should prosecute anyone in an abortion of a 10-year-old.’ He can say, ‘I don’t think we should prosecute any physician for making a decision under this law.’ But he’s not doing that.

“He seems to be kind of trying to have it both ways. And in some ways it seems like he’s trying to gaslight Ohio physicians and patients and constituents, honestly, about the impacts of this law.”

As confusion and controversy grow around Ohio’s abortion restrictions, the state’s Republican leaders aren’t answering the extremely difficult questions that it raises.

Despite being asked several times, aides to Yost and Gov. DeWine, a former attorney general, haven’t said how old their bosses think a person has to be before the new law requires them to have their rapists’ babies.

If Yost believes pregnancy for a 10-year-old is an automatic medical emergency, what about an 11-year-old? Or a 12-year-old? Or a 13-year-old?

At what age does pregnancy no longer qualify as an automatic medical emergency, in Attorney General Yost’s legal opinion?

Doctors must know, because doctors don’t have the luxury of taking a guess here. They not only face felony criminal charges as a consequence for the decisions they make, they also face civil liability from lawsuits, and the potential loss of their medical licenses.

Their freedom and their entire livelihoods as medical professionals are on the line. This is not a guessing game of chance. And it’s not a political football.

This is very serious business revolving around children who have been assaulted and traumatized, and the careers and freedom of health care providers obliged to treat them.

As the state’s chief legal officer, Ohio Attorney General Dave Yost has an obligation of his own to provide clarity here.

This is a law he moved to implement almost immediately. But in three years since the law was made, in 11 weeks since the Supreme Court’s draft opinion was leaked, and in the nearly four weeks since he had the law implemented, Ohio’s Attorney General has failed the duty of his office to provide legal clarity.

Instead, he’s only kicked more mud into the waters. This is professional malfeasance, and a complete abdication of his responsibilities.

Ohio’s abortion ban is bad law. It always was bad law. The terrible consequences were warned about by doctors and experts, and that testimony was ignored by Ohio Republicans.

Now the consequences are playing out with devastating impacts on people’s lives.

But this is the law Ohio Republican lawmakers made, Ohio Republican Gov. Mike DeWine signed, and Ohio Republican Attorney General Dave Yost implemented.

They do not get to shirk responsibility. They do not get to gaslight. The pain and suffering of this bad, thoughtless law is on their heads.

The doctors who warned them about these consequences are not “activist” for sharing that it’s just as horrible as they warned.

Doctors should not be criminalized for providing critical health care to their patients. But now they’re forced to navigate that looming threat every day.

The very least Yost could do at this point is provide clarity to the health care professionals he’s helped turn into potential felons.

But instead, at a crucial juncture, Yost is failing profoundly to perform the essential functions of his elected office.

People’s lives and livelihoods are literally on the line, and all Yost seems capable of doing is sowing even more confusion as he desperately backpedals to try to protect his own narrow, political self-interest.

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David DeWitt
David DeWitt

OCJ Editor-in-Chief David DeWitt has more than 15 years experience covering Ohio government, politics and policy, including education, health care, crime and courts, poverty, state and local government, business, labor, energy, environment, and social issues. He has worked for the National Journal, The New York Observer, The Athens NEWS, and Plunderbund.com. He holds a bachelor’s degree from Ohio University’s E.W. Scripps School of Journalism and is a board member of the E.W. Scripps Society of Alumni and Friends. He can be found on Twitter @DC_DeWitt.

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