Ohio tries to ban all abortions

A bill to BAN abortions in Ohio was introduced yesterday in the Ohio House of representatives. (PDF text of bill).

Such a bill would be

Violating procedural due process of the woman under the 14th Amendment

A person has the right, under the 14th Amendment to not have their life, liberty, or property taken from them without due process of law. In the case of life this translates to a criminal trial, in the case of liberty, it depends on the liberty, but the more fundamental the right in question (i.e., the right to one's body) the more "process" required.

The state cannot force a woman to carry a child to term by fiat, with no hearing, no notice, no *nothing*.

Mathews v. Eldridge offers some guidelines to determining process due, and they specifically require weighing the private interest, say, that of deciding whether to increase one's family, against the state's interest, and the burdens (that's *cost*) of implementing a substitute procedural requirement:

• the private interest that will be affected by the official action (decisions to have and raise children);
• the risk of an erroneous deprivation of such interest throught the procedures used, and the probably value , if any, of additional or substitute procedural safeguards;
• the Gov't's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The government's interest here is what? The health, welfare, and safety of citizens? It seems the Mathews analysis would find that if the previous statute adhered to the requirements of Griswold, Roe, and Casey - that is, early-term abortions permitted, and medical exceptions for any bans of aborting late-term pregnancies, in order to not prefer the potential life over that of the woman carrying it, etc., then obviously the state would not incur too great a burden providing such procedural requirements, if it's labored under the burden just fine before now.

Violating the substantive due process of the woman under the 14th Amendment

If the state can't bar people from deciding how to educate their children (Myers v. Nebraska or Society of Sisters), how can they force people to have their children in the first place? If Skinner tells us we have a "body" right, that the State can't just take your body and do with it what it will, then that's it, the State can't force you to carry a fetus. Or castrate you. Any more than it can require or ban the use of contraception (which would be a deep and abiding infringement of the rights of the couple deciding to create, or not, a family - see Griswold).

Note that both of these really address *who* gets to make these decisions. Traditionally, the person gets to make such intimate decisions, those that are so fundamental to the conduct of their own lives. To our ordered concept of liberty.

Discriminatory against women, or against pregnant women?

This ban is probably overinclusive and underinclusive, though it's hard to say since I don't know what the state's stated purpose really is. In my Mathews analysis above I handwave some health/welfare/safety jazz, but I don't actually know.

But in an equal protection analysis based on gender classifications, and since this is a law that on it's face puts women (or pregnant women) in a category of their own, I'm going to call that a gender classification, the law must satisfy an important state purpose, and the means of meeting that purpose must be substantially related to that purpose. (If this isn't a gender classification, then it may not warrant the intermediate level of scrutiny, but...since what happens to your physcal body (detention, death, forced breeding) might be a fundamental right, that could warrant a high level of judicial scrutiny, not an intermediate one. In such case, the ends pursued must be a "compelling state interest" and the means must be narrowly tailored to meet that interest. If neither case applies, the rational level of scrutiny is used, such that the end must be a legitimate state purpose and the means must be rationally related to it.)

Like, maybe the state's purpose is to protect teens from adult sexual predators (see previous post). But, if its stated purpose is to protect some subset of women (i.e., teens) then it's overinclusive because it bars abortions for all women, not just that subset. If the purpose, say, is to somehow protect citizens from sexual predators, then it's underinclusive because barring abortions is not going to affect all sexual predators, or even all sexual predators that prey upon women, because an act of sexual violence does not always result in a pregnancy.