News & Commentary

If you have social media and a way to get the latest news, chances are you have heard of two abortion bans (SB 23 and HB 413) - one of which was signed into law while the other was introduced to the Ohio Statehouse this year. HB 413 is still being talked about all around the globe after all.However, what you may not know is that there were actually NINE – not two – anti-choice/anti-abortion/anti-reproductive rights bills introduced in 2019 alone in Ohio.And these bills weren’t the only drama Ohioans saw in terms of reproductive rights.From an extremely restrictive six-week abortion ban being signed into law (and then temporarily blocked in the courts) to Planned Parenthood clinics being closed and yet another total abortion ban being introduced in the statehouse, following the trajectory of reproductive rights in Ohio is like getting whiplash over… and over… and over – even though abortion is STILL legal in Ohio even after all that's been said and done.Due to this, we here at the ACLU of Ohio have decided to compile a timeline of all the shenanigans that have happened this year so that you may be better informed for 2020.Before we peruse the outline, however, let’s do a quick 101 session to define the nine bills.*Senate Bill 23 – The “six-week abortion ban”. This bill bans abortions of any “unborn human individual” whose fetal heartbeat has been detected, essentially limiting abortions to six-weeks, a period of time in which most women aren’t even aware that they are pregnant.Senate Bill 27 – The “fetal and embryonic tissue disposal restrictions” bill – a bill which requires all fetal remains from an abortion be disposed of by either cremation or burial, thus making it extremely difficult for abortion clinics to conduct business due to time, energy, and resources being used for disposal.Senate Bill 155 – The “abortion pill reversal bill”. This bill requires the Department of Health release materials that should explicitly state there is a possibility to reverse the effects of an abortion conducted through the drug mifepristone – something that is not a scientific fact and could be highly dangerous for the individual taking mifepristone. Physicians are also obligated to provide these materials to all patients.Senate Bill 208 – “The born alive bill (extended)” – not to be confused with the born alive bill passed by the Bush Administration, this one was specifically introduced to expand the crime of abortion manslaughter to include the failure to take measures to preserve the health of a child born alive after abortion – thus making criminals out of doctors providing services.House Bill 90 – The “pregnancy misinformation act” – it requires the Department of Health to provide information about the humanity of an unborn child and achieving an abortion-free society.House Bill 182 – The “total insurance ban” bill prohibits insurance companies from providing coverage for nontherapeutic abortions. Nontherapeutic meaning that the mother’s life is not in danger. The sponsor of this bill also wants to forbid insurance companies from providing coverage for all “drugs or devices used to prevent the implantation of a fertilized ovum” – meaning all methods of birth control.House Bill 68 – The “six-week abortion ban II”, for it’s essentially a clone of SB 23, because it prohibits a person from preforming an abortion with the intent of the termination of the life of an unborn human individual whose fetal heartbeat has been detected.House Bill 297 – The “tax credits for donations to fake women’s health centers” bill. This bill allows organizations such as crisis pregnancy centers, whose whole purpose is to coerce women into not aborting their fetuses, to receive a refundable income tax credit.House Bill 413 – The “total abortion ban”. The global-attention grabbing of the nine, this bill, which claims life begins at conception, is a total ban on abortion, with additional regulations forcing doctors to re-implant ectopic pregnancies and punishments for doctors and individuals seeking abortions.Now here’s the 2019 timeline of these bills:February 12: Six-week abortion bans and fetal and embryonic tissue disposal restrictions bill introduced.Feb. 20-Mar. 5: Pregnancy misinformation act introduced and referred to the Health Committee.March 13-14: Six-week abortion ban passed in Senate and introduced to the House.March 27-April 2: Fetal and embryonic tissue disposal restrictions bill passed in Senate, introduced to the House, and referred to the Civil Justice Committee.April 3-4: Total insurance ban introduced and referred to the Insurance Committee.April 10&11: Six-week abortion ban passed in House and signed by Governor DeWine into law.May 15: ACLU of Ohio, Planned Parenthood, and Preterm file lawsuit challenging six-week abortion ban.May 28: Abortion pill reversal bill introduced.June 20-25: Tax credits for donations to fake women’s health centers introduced to House and referred to the Ways and Means Committee.July 3: Federal judge temporarily blocks six-week abortion ban from taking effect, nulling the July 12 effective date for the bill.Aug. 20: The ACLU of Ohio, Planned Parenthood, and Preterm filed a motion for permanent injunction on six-week abortion ban.Oct. 2: Born alive bill introduced.Nov.6-12: Abortion pill reversal bill and born alive bill passed in Senate and introduced to House.Nov. 14-19: Total abortion ban introduced to House and referred to Criminal Justice Committee.So where does this leave us? Here is a tally:9 bills were introduced.1 bill was signed into law, but has a temporary block on it as litigation proceeds.3 bills were passed in the Senate and are waiting on House decision.5 bills were introduced in the House and are awaiting House decision before going on to Senate (if passed).Additionally, one bill has been brought back to the forefront: HB 214, which was signed into law by former Governor John Kasich in 2017 and challenged by the ACLU of Ohio in February 2018. This law, which prohibits abortion if one of the reasons for the procedure is due to the knowledge of a Down syndrome diagnosis, was blocked from taking effect in March 2018. The state then appealed this ruling to the Sixth Circuit, which upheld the lower court’s ruling in October 2019. As of last week, this law is now headed back to the Appeals Court for an en banc review.Now here’s the thing. At the moment, there is only ONE pro-choice bill in the Statehouse:House Bill 184 – The “NO insurance ban” bill, which prohibits insurance companies from excluding contraceptives and birth control devices in regards to coverage. It further insures services for victims of sexual assault. This bill was introduced in April and is awaiting House decision.Just one.And it hasn’t been touched since it was introduced.So what does this mean? What does this all mean?It means that numerous bills are being introduced which an individual’s right to choose what happens to their body are restricted, not expanded.It means bills are being introduced to punish individuals who want abortions or their birth control covered by insurance – meaning no insurance coverage to prevent or terminate pregnancies.It means bills are being introduced to make targets out of abortion providers and doctors, whose livelihoods are increasingly at high risk.It means bills are being introduced which disproportionately and negatively affect those living in poverty, minorities, and people of color.Do you feel helpless? You may be wondering – what can you do?The best thing you can do?VOTE.Sure, 2019 is closing out on this sour note, but 2020 doesn’t have to. There’s a very important election season just around the corner, and the results of this election can determine what happens to each and every one of these bills – and numerous bills across the nation.So remember this helpless, frustrated, angry feeling. Pledge to only elect pro-choice lawmakers, but ones who also respect Roe v. Wade and uphold abortion access. Sign petitions. Show up to rallies. Take advantage of your RIGHT to protest. Call your state legislators.But, most importantly…VOTE.Make your voice heard.And stop the bans. * Note: the titles we’ve given them are ones that have either been repeatedly used in the media and/or by Naral, a pro-choice women’s organization with a chapter in Ohio.

Although Ohio is among the states hardest hit by the nationwide opioid epidemic—with the incarcerated population particularly at risk—numerous county jail authorities are failing to provide even the most basic medical care needed to blunt this ongoing crisis. This denial of treatment to people suffering from opioid use disorder (OUD) is making it far more likely that Ohioans will remain captive to this disease—and even die of a drug overdose.

In the United States, people are allowed to carry a loaded gun capable of mass killings, but I was treated as a criminal for carrying a camera with the intention of helping people.

On Thursday, December 5, Ohio Secretary of State Frank LaRose claimed 354 non-citizens either voted or were registered to vote last year, and he forwarded the names of those individuals to Attorney General Dave Yost for potential charges. Of the 354 reported, 77 of them cast ballots in 2018.

77.

Now let’s put that into perspective.

4,416,067 Ohioans voted last year.

77.

That’s less than a thousandth of a percent of total votes cast in the election. That’s slightly less than 0.002 percent.

A 2017 study from the Brennan Center For Justice shows that voter fraud is extremely rare. Even more important is that in instances such as this (354 alleged non-citizens being registered), mistakes are usually due to personal error, confusion about the process, or an administrative hiccup (as was the case with the 40,000 qualified voters nearly getting purged earlier this year in Ohio). Some of the 354 may have become citizens since the database was last updated. Others may have been mistakenly registered by a clerk at the BMV or low paid canvassers with registration goals.

The fear that is being produced is a disproportional response to the potential crimes committed.

Claims of voter fraud have been used as a tactic to bolster partisanship, especially among a party’s base, ahead of General Elections and to also discourage eligible voters from voting or even registering. Put simply, hyperbolic rhetoric about fraud scares potential voters. A perfect example of such happened right here in Ohio – billboards were strategically placed in Cleveland (and across the country in black and brown neighborhoods) during the 2012 election. Scare tactics such as these tend to keep communities of color, repatriated, and naturalized citizens at bay during elections.

Additionally, these claims are demoralizing to the electorate and election staff. Telling voters that the process is compromised can make people lose trust in the system and can bruise the confidence of hardworking Board of Elections employees.

Through this public fraudulence claim and continued voter purges, one thing is clear: Secretary LaRose needs to do more to ensue ALL eligible Ohioans are able to and encouraged to cast a ballot and participate in the democratic process.

There are many reasons why youth may not show at the polls, but it seems the overwhelming majority's thought is this: many youth don’t think their vote will ever make a difference or determine any outcomes

In March 2019, House Bill 164 aka “The Ohio Student Religious Liberties Act,” was introduced. In November, it passed the Ohio House and is now on its way to the Senate.

Recently, HB 164 has received lots of statewide and national attention. This has led to some misconceptions about what this bill will accomplish and what it will not. Below, I hope to clear up any confusion about HB 164 as well as its impact and ramifications.

First, it is important to state the ACLU of Ohio is fully on board with protecting the religious liberties of our public school students. Such accommodations and protections are not only consistent with but are required by the First Amendment to the U.S. Constitution as well as the Ohio Constitution. The Bill of Rights applies to government entities, including our public schools.

Sometimes, this can put public schools in a bind. Government generally must remain neutral when it comes to religion, faith, religious practices, and related issues. That means, as the First Amendment states, government cannot advance or inhibit religion. On occasion, schools may overreact and violate a student’s rights as they attempt to remain neutral. Other times, schools may get it wrong when they allow too much accommodation and violate that neutrality requirement.

Many supporters see HB 164 as a way to inform and provide clarity in these matters. But in reality, HB 164 only sows further confusion and clarifies very little. Below are the ACLU of Ohio’s three primary concerns with HB 164 and why we oppose it, despite our support for student religious liberties in Ohio schools.

1) House Bill 164 is Entirely Unnecessary

As mentioned, the religious rights of Ohio’s public school students are already protected by the federal and state constitutions. For that simple reason, HB 164 is unneeded. The protections and provisions of the federal and state constitutions supersede state law.

However, in attempt to provide further assistance to all stakeholders (students, schools, teachers, Ohioans, you, and me), HB 164 essentially cuts and pastes various terms and principles from existing case law and court decisions into Ohio law under the belief such efforts help. They do not.

Constitutional language and principles were purposely left broad so later generations could decide for themselves how to apply them to their current society and lives. For example - sure, we have a right to free speech. But that does not mean any and all speech at any and all times. The same is true for guns, religion, privacy, our justice system, and other areas that have sorted out when unlimited constitutional rights end and some amount of regulation or restriction is permitted.

In other words, we wisely do not list in our laws every single way the free speech protections of the First Amendment apply to our art, speech, news media, and expression. We do not do that for any of our rights. Why should we do it now with students’ religious rights, via House Bill 164? Especially when case law can and does change the legal and societal landscapes. By enshrining the language of courts into our state law, we make it necessary, post-HB 164, for the legislature to pass another bill each and every time a new court decision comes out impacting Ohio students’ religious liberties. And I can promise you the Ohio legislature will not do that.

The end result of all this is more confusion, not less.

2) The “Coursework Provision”

The section on coursework and related assignments is the most debated part of HB 164. It has also been misinterpreted by some. Under current practices, students are graded using a variety of academic standards to ensure they are learning what schools and teachers expect them to digest and learn. On occasion, students will interject their religious beliefs into such assignments. There are times this may be irrelevant or unwelcome. There are other times the opposite may be true.

HB 164 tries to provide guidance in these situations by explaining teachers should still use “ordinary academic standards of substance and relevance, including any legitimate pedagogical concerns.” Would HB 164 stop there, there would be no problem. Instead, the bill continues “and shall not penalize or reward a student based on the religious content of a student’s work.” What exactly this vague, unhelpful language means is anybody’s guess – and that is precisely the problem. Does it mean, as some proponents claim, students should not be unfairly penalized if the inclusion of religious beliefs is part of their completion of an assignment but they still demonstrate the knowledge required or expected? Or, does it mean, for example, a student can complete a term paper on biological diversity over the course of history by providing answers reflecting their faith, no matter how irrelevant or scientifically incorrect? If so, HB 164 seeks to have it both ways; grade as you normally would but do not penalize for in any way for including religious beliefs.

Perhaps the former situation is the true intention of HB 164. If so, it should be clearly reflected in the language of the legislation because, right now, this section of HB 164 can be interpreted in a variety of ways. Such confusion does not help Ohio’s students or schools. It only makes these situations unnecessarily messy.

3) The Religious Speech Problems (the most troubling provision)

While the coursework language has received the most attention, it is not the most problematic part of HB 164. That belongs to the religious speech provision that directs schools to engage in unconstitutional practices. Indeed, HB 164 reads:

A student enrolled in a public school may engage in religious expression before, during, and after
school hours in the same manner and to the same extent that a student is permitted to engage in
secular activities or expression before, during, and after school hours.

It is understandable this may sound to some like simply ensuring schools do not discriminate against religious speech. The reality is far more troubling.

Consider this example: A student club devoted to suicide prevention approaches the principal asking to use the school gymnasium next Tuesday at 2pm so their members can discuss this issue with their fellow classmates. At that assembly, they will talk about mental health, stress, and available resources.

Under HB 164, that same principal is required to allow a student religious club to have its own assembly, on the same topic, where their message can simply be the only correct answer for suicide prevention is to get right with God and religion. It need not even be another club making the request. It could simply be one student. Their own assembly need not even be about suicide. Under HB 164, it presumably could be about any topic, as long as it is religious in nature.

Perhaps a school allows students to use the public address system to make announcements. For example – the chess club will meet at 3pm today in Room 100, there will be a pep rally for the football team on Friday, and we need more volunteers to decorate for the homecoming dance. Under HB 164, the school must allow students to deliver religious messages – or even prayers – over that same PA system.

Indeed, such a broad, almost unlimited provision can and will include everything from yearbooks to school plays, the student newspaper, sporting events, and everything else. After all, under HB 164, such religious speech and expression must be accommodated “in the same manner and to the same extent” as non-religious speech of each and every kind. All while the public school also attempts to remain or appear neutral, as they are required. Much luck to them as they attempt to navigate this constitutional minefield.

Student religious liberties is an important issue that should be treated seriously. But, House Bill 164 is not needed. It does not accomplish what supporters say it will and actually moves Ohio the opposite direction. Schools will be sued. While we appreciate the concerns of HB 164 proponents, this bill does far more harm than good and that is why the ACLU of Ohio will continue to oppose it.

Below is our Chief Lobbyist Gary Daniels' proponent testimony on Senate Bill 140. This was delivered to the House Criminal Justice Committee on November 21, 2019.

Below is our Chief Lobbyist Gary Daniels' proponent testimony on House Bill 263. This was delivered to the House Commerce & Labor Committee on November 6, 2019.

Why is Criminal Rule 46 important? Criminal Rule 46 is the Rule of Practice and Procedure that provides all state courts with instructions regarding bail-setting procedures. This Rule therefore has the opportunity to implement bail reform across the state of Ohio. It could also choose to allow current practices to continue. Currently in Ohio, we have a two-tiered system of justice in which those who can afford their financial conditions of release go home, and those who cannot are often forced to stay in jail. We cannot allow this system to continue, and Criminal Rule 46 is one of the ways we can get the change we need. What is a  Rule of Practice and Procedure? As the name suggests, Rules of Practice & Procedure govern the practice and procedures of all state courts in Ohio. These Rules include the Rules of Evidence, Rules of Juvenile Procedure, Rules of Appellate Procedure, Rules of Criminal Procedure and Rules of Civil Procedure. Criminal Rule 46 is part of the Rules of Criminal Procedure. How are Rules of Practice and Procedure created and adopted? This is a multi-step process, we broke it down here:Recommendations: The Supreme Court of Ohio's Commission on the Rules of Practice and Procedure Reviews all rules, receives and considers proposed rules and amendments, and recommends rules and amendments for adoption by the Court.Comments: It is standard practice that when considering amendments to Rules of Practice & Procedure, the Supreme Court of Ohio publishes the proposed amendments for public comment.Review: The Commission and the Court then review the comments and determine what amendments they want to file with the General Assembly.General Assembly: The Ohio Constitution requires that all Rules of Practice & Procedure be filed by the Court with the General Assembly on or before January 15th. The General Assembly then has the opportunity to publish the proposed amendments for public comment again, hold committee hearings, or submit its own recommendations to the Court. Or, it could do nothing.Back to to the Supreme Court of Ohio: The Commission and Court will then once again review the comments received. On or before May 1st, the Supreme Court is required to file any revised amendments with the General Assembly.Back to the General Assembly: The General Assembly has the opportunity to disapprove of the amendments.Effective Date: If the General Assembly does not disapprove of the amendments, they become effective on July 1st of the year.Where are we in the Rule adoption process?  Comments to the proposed amendments to Criminal Rule 46 close on November 6th. Next, the Commission and the Supreme Court of Ohio will review the comments and make changes as they see fit. Next, if they choose to move forward with the amendments, they will submit them to the General Assembly for their first review. Do Rules of Practice & Procedure have the power of law? Yes! If a previous law is in conflict with a new Rule of Practice & Procedure, the Rule trumps the law. However, a subsequent law can trump a previous Rule. (Rules of Superintendence, a different type of rule created by the Supreme Court of Ohio, do not have the power of law. But Criminal Rule 46 is a Rule of Practice & Procedure, so it does have the power of law.) Can we go over “bail” terminology?Personal Bond (aka personal recognizance): A written promise to appear for future court dates. This type of bond is NOT backed by money.Secured Bond: Money that the accused or another individual pays upfront as a security for one's promise to appear at future court dates. There are different types of secured bonds.Full Cash bond: When the full amount of the bond is paid prior to release.10% bond: When 10% of the whole money bond amount is due prior to release.Surety Bond: Typically, when a bail bond agent posts bond in return for a 10% nonrefundable fee.Property Bond: When the accused pledges the title to the real property prior to release.Unsecured Bond: A written promise to appear for future court dates that is backed by money that is not paid upfront. However, the bond amount will be due if the accused fails to appear or comply with conditions of release.What does the ACLU of Ohio’s comment on the proposed amendments to Criminal Rule 46 recommend? Each of the recommendations included in our comment are responsive to the goal of ensuring that no individual is detained simply because they cannot afford their conditions of release. Below, we have provided a summary of our recommendations. What specifically did we ask for? See below for some of the recommendations our comment included.We need a clear definition of “bail”: The word “bail” continues to be wrongfully conflated with “financial conditions of release.” We have asked that Criminal Rule 46 include a clear definition and purpose of “bail.”We need a strong presumption of release on personal recognizance and against financial conditions: While the proposed amendments have added favorable language, such as requiring that each condition of release to be the “least restrictive,” the amendments do not provide for a presumption of release, nor do they have a presumption against the imposition of financial conditions of release. Without these presumptions, we do not believe courts will change their current bail-setting practices. Liberty is supposed to be the norm for accused individuals, and this Rule should reflect that.We need ability-to-pay determinations: Judges should be required to make an on-the-record ability-to-pay determination before setting a financial condition of release. If a judge does not make an inquiry into the finances of the accused individual, the judge will be unable to determine what bond amount will act as an incentive for appearance versus what is likely to lead to unnecessary detention. An ability-to-pay determination requirement would also stop the unconstitutional practice of detaining individuals by setting egregiously high financial conditions of bail.We need the Supreme Court of Ohio to eliminate the cost of “non-financial” conditions: The current proposed amendments differentiate between financial and non-financial conditions of release. Non-financial conditions of release, according to the rule, include GPS monitoring, and drug treatment. While listed as non-financial conditions, across Ohio, some jurisdictions force pretrial individuals to pay for these types of services. If someone is unable to pay for their services, they can be sent back to jail. We strongly urge the Supreme Court of Ohio to specify that the cost of pretrial services and conditions of release must never be borne by the accused individual.We need a right to counsel at all stages during which bail is set: The proposed amendments allow for the continued denial of counsel at the first hearing at which conditions of release are set. Bail-setting is a critical stage of prosecution and individuals should have a right to counsel at all stages during which bail is set.We need written findings on the record: Judges should be required to make written findings on the record for their conditions of release decisions. If a judge does not have to demonstrate how or why a condition is “least restrictive” and why it is necessary to assure stated goals, then the courts are unlikely to change current bail-setting practices.The Supreme Court of Ohio should better define public safety: The proposed amendments require that conditions of bail be set to protect “the safety of any person or the community.” This is too broad and as a result, it lacks guidance. Because it is not clear what constitutes safety, a judge could use the vague language as cover to set restrictive conditions. The court should be required to make findings regarding the safety of a specific person, persons, or organization.The Supreme Court of Ohio should get rid of bond schedules: We remain staunchly opposed to bond schedules. They allow for no individual consideration, and as a result, allow those who can afford bond to go home, and keep those without deep pockets in jail unnecessarily.We need bail forfeiture protections: The proposed amendments allow for financial bonds to be forfeited after the first failure to appear. However, this does not take into consideration real-life obstacles that may thwart good-faith efforts to appear or comply with conditions. We encourage the Supreme Court of Ohio to adopt a mechanism by which individuals can appeal their bail forfeiture.