pre-Roe statute prohibited performance of an abortion
on a pregnant woman unless it was “necessary to preserve her
life, or [it was] advised by two physicians to be necessary
for that purpose.” Pursuant
to Roe, this statute was declared unconstitutional by
the Ohio Supreme Court in State v. Kruze. While
Kruze’s petition for certiorari was pending, the statute
was repealed, and
its substantive provisions re-enacted. That
statute, in turn, was repealed in 1974. The
pre-Roe statute would not be revived by a decision overruling Roe
v. Wade. Abortions could be performed for any reason before
viability. Under a separate statute, however, abortions could
be performed after viability only to prevent the death of the
pregnant woman or to prevent substantial and irreversible impairment
of a major bodily function.
Ohio Rev. Code Ann. § 2901.16 (Baldwin
916 (Ohio 1973). Prior to Roe, the Ohio Supreme
Court, in a pair of unreported orders, had dismissed defendant’s
appeal in Kruze for want of a substantial constitutional
question and overruled his motion for leave to appeal. See
State v. Kruze, No. 72-11, March 10, 1972 (Ohio Supreme
Court), vacated and remanded, 410 U.S. 951 (1973). In
another pre-Roe decision, Ohio’s pre-Roe abortion
statute was upheld in an unappealed decision of a three-judge
federal district court. See Steinberg v. Brown,
321 F.Supp. 741 (N.D. Ohio 1970).
Laws 988 (1974).
Rev. Code Ann. § 2919.17 (Anderson 2003). This
statute is not currently enforceable. See Women’s
Medical Professional Corp. v. Voinovich, 911 F.Supp.
1051, 1078-81 (S.D. Ohio 1995), aff’d, 130 F.3d
187, 203-10 (6th Cir. 1997), cert. denied,
523 U.S. 1036 (1999). A decision of the Ohio Court of
Appeals appears to recognize a right to abortion under
the liberty language of the Ohio Constitution. See
Preterm Cleveland v. Voinovich, 627 N.E.2d 570, 574-75
(Oh. Ct. App. 1993) (upholding informed consent statute). The
court held that “the choice of a woman whether to bear
a child is one of the liberties guaranteed by Section
1, Article I, Ohio Constitution.” 627 N.E.2d at 575.
Whether the Ohio Supreme Court would adopt the reasoning
of the court of appeals is unknown because the supreme
court denied review See Preterm Cleveland v. Voinovich 624
N.E.2d 194 (Oh. 1993)..