How Biden's executive order on abortion rights will impact Ohio

How Biden's executive order on abortion rights will impact Ohio
Posted at 7:39 PM, Aug 04, 2022
and last updated 2022-08-04 20:23:11-04

COLUMBUS, Ohio — President Joe Biden's latest executive order is aiming to expand reproductive health care, but it could be a long road until Ohioans are able to utilize any of the services included.

Biden signed his second executive order on abortion access Wednesday. It aims to help pregnant women and people travel out of state to get an abortion, while also ensuring health care providers comply with federal law. It would have Medicaid reimburse patients for out of state travel for their appointments.

"The executive order is very welcome," ACLU of Ohio Legal Director Freda Levenson said. "We're thrilled to see further commitment by the president to help protect access to essential health care."

It is already expensive enough to travel in state to get an abortion, so this help is crucial, Levenson added.

This order comes after Kansas voted overwhelmingly Tuesday to protect abortion access in the state constitution.

"Kansas is arguably even more conservative than Ohio," she said. "So that is very welcome to see that the majority there was successful in preserving abortion access through the democratic process. If we do this in Ohio, and I certainly hope and expect that we will, I'm hoping for similar results when citizens take action rather than waiting for a gerrymandered Legislature to take contrary actions."

But Mike Gonidakis with Ohio Right to Life believes Biden should stop giving pro-choice activists false hope.

"We would sue if the president hypothetically had the authority to do what he did," Gonidakis said. "The executive order has no teeth."

Instead of trying to rile his base up, Biden needs to start focusing a little bit more on the economy, security and supply chain, he said.

"All he has and all his party has right now is to obsess over abortion because they think it's a political issue that they could use to stop the bleeding this November from the red wave that is coming," he added.

Plus, Biden is just going out of his way to discredit the third branch of government, the lobbyist said. Luckily, he added, there is another safeguard for that.

He brought up the Hyde Amendment, which prohibits federal dollars from being used to fund abortions.

"Certainly, the Hyde Amendment is an obvious question that could interfere with the ability of the federal government to supply funds for abortions," Levenson said, acknowledging the point made by the lobbyist. "Whether assisting someone to travel to obtain an abortion out of state is helping to pay for an abortion — I don't think it is."

Right now, it's unclear how that law would interact with Biden’s executive order — since both Levenson and Gonidakis note that it is just a signal of his dedication to abortion access.

Case Western Reserve University law professor Sharona Hoffman explained that the general public on both sides may be getting ahead of themselves.

"All that he can do as an individual is issue these executive orders and try to get the departments that are in charge of certain activities to do what they can," Hoffman said. "Sometimes some people sit and wish, 'boy, I wish he could just fix this' and he cannot."

There are different Medicaid programs in Ohio with different financial requirements, but the individuals generally have limited income. Allowing for reimbursement can be a good thing, but advancement payment could be a better option for people who self-identify as being in one of the lower income brackets.

"You will have to come up with the funds to travel in the first place and presumably you might even need a hotel, stay, etcetera," the professor said.

Since the Supreme Court decision, only Congress has the power to enact federal change.

However, Ohio does have laws that may be passed in the winter that would make it a crime to help someone in getting an abortion, which some conservatives say could mean a person driving the patient out of state.

"In this case, if Medicaid simply provides reimbursement for that and it's not a person transporting somebody to another state, that would not be contrary to Ohio law because it would be a federal entity providing reimbursement for this activity," Hoffman said. "But if a doctor said, 'hey, I can't give you an abortion, but my friend Joe in Pennsylvania can,' then that could be interpreted as aiding and abetting."

Would the federal government be liable to be sued by states by "aiding and abetting" by paying for abortion? Potentially, Hoffman said, but this would likely never even happen.

"It's very difficult to sue the federal government because of immunity," she said. "It's not that likely."

Despite wanting to end abortion in Ohio, Gonidakis said it would be unconstitutional to stop travel for it.

"There is no legislation in the state of Ohio, in any state, for that matter, that bans or prohibits any American from traveling from one state to another, whether it's to buy a TV, go to a sporting event, a concert or to have an abortion," he said. "The Constitution of the United States allows for us to travel freely on the open borders."

But the “Human Life Protection Act,” which has had three hearings, could potentially try to change that. House Bill 598 was sponsored by state Rep. Jean Schmidt, a Republican from Loveland, and would ban abortion without exceptions for rape, incest or the life of the mother or pregnant person.

This is the same bill that made national news after Schmidt said rape was an “opportunity” for a hypothetical 13-year-old girl who was raped by a relative.

Among other provisions, it makes criminal abortion a felony in the fourth degree, makes "promoting" abortion a first-degree misdemeanor and makes abortion manslaughter a felony of the first degree.

While talking to 700WLW host Bill Cunningham on how she feels about companies providing their employees with money to travel to other states for an abortion, Schmidt gave a warning.

“In House Bill 598, it says anybody that promotes an abortion will be under the issues of criminal activity," Schmidt responded. "They might have a problem with sending somebody outside the state with a paycheck in hand, because that would be — in some legal eyes — promoting abortion.”

RELATED: Ohio lawmaker says baby born of rape, incest ‘still has the right to life’

Although he did not hear the interview and wasn't sure of the context, Gonidakis said that type of argument wouldn't hold up in court.

"We don't pass laws or support laws that would ban someone from travel," the lobbyist said. "Look, if a private company wants to spend their private dollars on things that I agree or disagree with, it's going to be very difficult to stop a private company."

He reiterated that Ohio Right to Life would not support that provision of the bill and added that he believed it would never be upheld in a court of law, the governor wouldn't sign it and he doesn't believe there's enough support by Republicans in the Ohio Legislature to ban someone from going to another state for any reason.

"What are we going to do? Put a wall around Ohio and check everyone's reasoning and thought process of why they're leaving the state?" he asked, rhetorically. "It's absurd and ridiculous... It's unconstitutional, it's un-American."

Levenson agreed.

"Ohio bans abortion within the state," she said. "There's nothing unlawful about traveling out of state or by assisting anyone to travel out of state to obtain a lawful abortion."

This whole debate could be moot because Medicaid rules are complicated and they don't typically pay for travel, Hoffman said.

"But there is a sense of urgency on the part of the federal government to try to support women who seek reproductive care, and, of course, this isn't only abortions," Hoffman said. "People are having trouble when they have miscarriages and doctors who are now concerned about their own professional security or refusing to provide responsible care for miscarriages."

With physicians fearing their license, they now need to balance their own interests against patient interests.

Even with federal backing, doctors will probably still be nervous, she added.

"This just provides some reimbursement to impoverished women who travel to another state," she said. "But all of the state laws, as I said, will remain in place and therefore, doctors will have those concerns and will have to make that calculus, which is really tragic."

Now, it's up to the Sec. Becerra to determine if Medicaid will step in, but advocates on both sides say they are prepared for lawsuits from states and conservative groups.

Currently in Ohio, Levenson and her colleagues at the ACLU, in addition to Planned Parenthood and other local abortion providers, are waiting to hear on a lawsuit they filed against the six-week abortion ban that is now in effect.

She is waiting for the Ohio Supreme Court to rule on Attorney General Dave Yost's motion to dismiss the case.

RELATED: Ohio Attorney General asks for dismissal of abortion lawsuit

"Our challenge pending in the Supreme Court, asking the court to interpret the Ohio Constitution to determine that it has a right to abortion since the U.S. Supreme Court took away the right in the federal constitution to protect the right," she added. "Our state constitution is importantly different from the federal constitution, and it offers protection for the right to abortion.

"We're looking forward to the Supreme Court making its determination in this case and providing protection for Ohioans."

Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.