Ohio House Bill 78 was signed into law by Governor Kasich on July 20, 2011, and became effective October 20, 2011.

H.B. 78 reinstates restrictions on abortion substantially similar to those previously challenged on Constitutional grounds. H.B. 78 prohibits purposely performing or inducing an abortion on a pregnant woman carrying a viable unborn child. Physicians are prohibited – except in a medical emergency – from performing an abortion after the twentieth week of gestation unless the physician determines that the unborn child is not viable after the physician performs required viability tests.

It is an affirmative defense to a charge that the abortion was performed or attempted by a physician that the physician determined, in the physician's good faith medical judgment, based on the facts known to the physician at that time, that either of the following applied:

  1. The unborn child was not viable.
  2. The abortion was necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.

In order for the affirmative defense to be available in the case of option (a) above, the physician must perform viability testing and determine prior to the procedure that, in the physician's good faith medical judgment, the unborn child is not viable. The viability testing must include a medical examination of the pregnant woman and tests for assessing gestational age, weight, lung maturity, or other tests that a reasonable physician would perform or cause to be performed in determining whether the unborn child is viable. The viability testing results must be documented in the patient’s medical record.

The definition of “viable” remains unchanged under H.B. 78 and is “the stage of development of a human fetus at which in the determination of the physician, based on the facts of the woman's pregnancy that are known to the physician and in light of medical technology and information reasonably available to the physician, there is a realistic possibility of maintaining and nourishing of a life outside of the womb with or without temporary artificial life-sustaining support.”

In order for the affirmative defense to be available in the case of option (b) above, all of the following conditions must apply:

  1. The physician who performs or attempts to perform the abortion certifies in writing that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
  2. Another physician who is not professionally related to the physician who intends to perform or induce the abortion certifies in writing that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
  3. The physician performs or attempts to perform the abortion in a hospital or other health care facility that has appropriate neonatal services for premature infants.
  4. The physician who performs or attempts to perform or induce the abortion terminates or attempts to terminate the pregnancy in the manner that provides the best opportunity for the unborn child to survive, unless that physician determines that the termination of the pregnancy in that manner poses a greater risk of the death of the pregnant woman or a greater risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman than would other available methods of abortion.
  5. The physician certifies in writing the available method or techniques considered and the reasons for choosing the method or technique employed.
  6. The physician who performs or attempts to perform the abortion has arranged for the attendance in the same room in which the abortion is to be performed or attempted at least one other physician who is to take control of, provide immediate medical care for, and take all reasonable steps necessary to preserve the life and health of the unborn child immediately upon the child's complete expulsion or extraction from the pregnant woman.

Violation of the prohibition on post-viability abortions is a felony of the fourth degree. A physician who performs or attempts to perform a post-viability abortion, and who has actual knowledge that the affirmative defenses are not applicable or has heedless indifference as to whether the defenses are applicable, is subject to civil liability, and a court may award injunctive or other appropriate equitable relief. Additionally, the State Medical Board is required to revoke a physician’s license to practice medicine for violation of the post-viability abortion provisions.

Failure to perform viability testing is a misdemeanor of the fourth degree, and requires the State Medical Board to suspend a physician’s license to practice medicine for six months. H.B. 78 also requires a physician who performs or attempts to perform an abortion to submit a report that includes all the information the physician is required to certify or determine under the above provisions to the Ohio Department of Health within fifteen days after the woman is discharged.