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The 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.”1  Pursuant to Roe, this statute was declared unconstitutional by the Ohio Supreme Court in State v. Kruze.2  While Kruze’s petition for certiorari was pending, the statute was repealed,3 and its substantive provisions re-enacted.4  That statute, in turn, was repealed in 1974.5  The pre-Roe statute would not be revived by a decision overruling Roe v. Wade.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.6

1 Ohio Rev. Code Ann. § 2901.16 (Baldwin 1953).

2 295 N.E.2d 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).

3 134 Ohio Laws 1868.

4 Id. at 1943-44.

5 135 Ohio Laws 988 (1974).

6 See Ohio 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)..


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