'This isn't like Texas': Experts say helping Ohio patients get abortion care isn't illegal

In the first hours and days with no constitutional right to abortion, spiritual leaders, community organizers and activists are stepping in to ensure the public doesn't lose access to a criminalized procedure. 

Some are operating in legally questionable ways. 

Clergy are driving caravans of people to clinics in Pittsburgh after Ohio swiftly outlawed most abortions on Friday.

Support organizations have shifted funding priorities from paying for abortions here to getting patients to states with more lax abortion regulations than Ohio, where it's now illegal to terminate a pregnancy after fetal cardiac activity can be detected, typically at about six weeks gestation.

Abortion in Ohio:What to know about Ohio's 6-week abortion ban

Northeast Ohio clinics dropped 90 percent of their patients

Clinics across Northeast Ohio dropped 90% of their patients, including a 15-year-old girl scheduled for an abortion at a local facility who told the doctor she had been raped by a relative.

Now too far along in their pregnancies to get an abortion in Ohio, patients with canceled appointments raced against time to reschedule at clinics in Michigan, Pennsylvania or Illinois. One advocacy group flew some of them to Maryland, New York or even California to avoid overrunning clinics in neighboring states, which happened in Oklahoma last year when Texas implemented a similar ban.

Pregnant Ohioans are going online in search of abortion pills from a wide range of vendors, including international sellers with less concern for strict American regulations.

Community activists met in Akron Sunday to brainstorm do-it-yourself solutions. One man said he ordered and would distribute 60 abortion pills on an as needed basis.

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Ordinary people openly asked if paying for abortions or driving someone clinic in other states could be a crime. Drivers are unsure if they’ve broken human trafficking laws by transporting 17-year-old pregnant girls to other states.

Doctors, lawyers and organizations that perform or support abortions assured them that no law in Ohio criminalizes the aiding or abetting of abortion. But the writing is on the walls, they say, with Ohio Republicans this year introducing a bill that would criminalize the passing of abortion pills or equate the “prior calculation and design” of ending another’s pregnancy to aggravated murder.

A third bill introduced late last year would allow citizens to sue for "no less than $10,000" anyone who performs or abets an abortion or even talks about doing either.

“This isn’t like Texas,” said Dr. David Burkons of the Northeast Ohio Women’s Center in Cuyahoga Falls. “There’s nothing in Ohio about aiding and abetting. The concern is that it will come.”

Can patients be charged for seeking abortions in Ohio?

The U.S. Supreme Court’s overturning of Roe v. Wade on Friday reversed 50 years of constitutionally guaranteed access to abortion. The ruling returned regulation to the states.

Confusion swirled around what constitutes aiding and abetting a now largely outlawed procedure in Ohio.

Just hours after the ruling, a federal judge granted Ohio Attorney General Dave Yost’s request to lift a court-ordered stay on the 2019 Human Rights and Heartbeat Protection Act, otherwise known as the “Heartbeat Bill” or “six-week ban.” From that moment, performing an abortion when fetal cardiac activity can be detected became a felony offense. Doctors can lose their licenses, go to jail or face $20,000 fines from by the state medical board.

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But the patients who get the abortions, including those who order and take abortion pills in their homes, are not guilty of any crime. Even in Kentucky and seven other states that all-out banned abortion within hours of the U.S. Supreme Court decision, the new laws specifically target abortion providers and doctors while expressly granting civil and criminal immunity to pregnant people who get surgical abortions or self-manage their abortions by taking pills.

“The six-week ban explicitly exempts the person who receives the abortion. And I don't see anything else in Ohio law that criminalizes a person self-managing their own abortion,” said Jessie Hill, a professor of constitutional law at Case Western Reserve University who advises abortion providers and often joins the American Civil Liberties Union in court to challenge restrictive abortion laws.

Enforcing the six-week ban falls on county prosecutors.

On Friday, 80 elected prosecutors from across the nation, including Columbus City Attorney Zach Klein and Cuyahoga County Prosecutor Michael O'Malley, signed a bipartisan pledge “to refrain from using limited criminal legal system resources to criminalize personal medical decisions. As such, we decline to use our offices’ resources to criminalize reproductive health decisions and commit to exercise our well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”

Summit County Prosecutor Sherri Bevan Walsh said in an emailed statement that she would use her discretion “wisely to seek justice and ensure the safety of our community” by reviewing the investigations, facts and mitigating factors of individual cases.

“It would not be proper to make a blanket statement since all cases have their own facts and issues which will be carefully considered,” she said.

Hill does not expect women to be prosecuted.

“It's not impossible that some zealous prosecutor will try, but in general, there are no laws I'm aware of that regulate or forbid this in Ohio," she said.

Self-managed abortions in the mail

The abortion pill, or medication abortion, is a two-drug regimen designed to induce a miscarriage.

Mifepristone, first approved in 2000, stops the growth of the fetus. Misoprostol — developed in 1973, originally to treat ulcers — causes cramping and bleeding that empties the uterus.

Use of pills is up, especially after the Food and Drug Administration updated the label in 2016 to declare mifepristone highly effective and safe. The drug was used in 4% of Ohio abortions in 2015 versus 47% in 2020, according to the Ohio Department of Health.

The two-drug combination is approved for abortions up to 10 weeks.

"Within a week, you can, without ever leaving your house, you can have a telehealth consolation without a licensed provider and have FDA-prescribed medication delivered to your home," Plan C co-founder Elisa Wells said. 

Wells' website helps people find abortion pills based on where they live. Ohioans who search are met with the following message:

"You live in a state that restricts access to abortion, but alternate routes of access may still be possible. People in your state are getting abortion pills by mail and having medically-safe abortions at home... ."

Plan C recommends Ohioans visit online pharmacies, use a process called mail forwarding in which pills that arrive in an out-of-state mailbox are forwarded to Ohio, or Aid Access, an organization that connects patients with overseas doctors. Pills on Aid Access cost about $110 versus $200 for the mail-forwarding option, which includes a telehealth visit.

Patients with questions or concerns can call or text for free with clinicians through Plan C's Miscarriage and Abortion Hotline. 

"It’s fundamentally different, and that’s what we want people to know," Wells said. "We do not want people using coat hanger imagery. That is from the past. There is a safe way to self-manage an abortion."

Abortion fund providers caution people against stockpiling Plan B emergency contraceptive pill or abortion pills without a well-developed plan to distribute them before they expire. Hoarding limits availability for patients who need the pills now, and it drives up the cost, said Maggie Scotece, the interim executive director at Women Have Options Ohio (WHO), which manages Ohio’s only statewide abortion fund.

Last year, the FDA made permanent policy of the pandemic decision to allow abortion pills to be delivered by mail. Ohio lawmakers have refused to adopt that position.

"The abortion drug (mifepristone) is also subject to an extra layer of regulation in Ohio," said Hill, the CWRU law professor. "It can only be provided by a doctor, dispensed in a clinical setting, according to the protocol set out in the federal label, and so on. Many of those websites that provide the medication directly to patients are operating in a definite legal gray area; some are based overseas and therefore are just not concerned about prosecution even though they may be violating state laws."

Patients traveling to abortion-friendly states

Texas led the country in September when it enacted its own version of a heartbeat bill.

But that didn’t stop thousands of women from getting abortions.

A study released in March by the Texas Policy Evaluation Project at The University of Texas compared the number of Texans who received out-of-state abortions in the last four months of 2019 versus 2021. (2020 was not included as the state shutdown abortion access during the pandemic.)

Out-of-state abortions, mostly performed in neighboring New Mexico or Oklahoma, jumped ten-fold from 514 in 2019 to 5,574 in 2021.

A similar pattern is emerging with Ohioans and Kentuckians flooding clinics from Pittsburgh to Detroit and Chicago.

With state lawmakers passing laws that targeted clinics in southeast Ohio, thousands of patients were already traveling from out-of-county to Dr. Burkons' clinics in Shaker Heights, Cuyahoga Falls and Toledo, which together performed more abortions than any other network in Ohio. Now Burkons is consulting lawyers on the possibility of opening "satellite offices" in Sharon, Pennsylvania, or Temperance, Michigan — each on the Ohio border.

The plan is to refer his Ohio patients to receive the abortion pill or surgery at these new locations, reducing the number of abortions recorded annually in Ohio and adding them to the counts of neighboring states.

Pastors shepherd abortions

Ohio Clergy for Choice, a group of 258 pastors, has been aiding pregnant in Ohio for years under "priest-penitent privilege" — the concept that spiritual advice from clergy, including whether and how to get an abortion, is none of the government's business.

The group ramped up its efforts with the Supreme Court decision last week as clinics just outside Ohio and Kentucky added hours and staff to handle an influx of patients.

"The clinics had to call people on Friday and say, 'You can't come in tomorrow. You can't come in tonight," said Rev. Terry Williams with the network. "When that happened, there were multiple carpools of individuals from Akron, Canton and over into Youngstown that drove people to Pittsburgh or up to Erie to be able to get abortion care."

Now Williams is trying to coalesce his statewide network of church leaders to coordinate volunteers and support. As part of Faith Choice Ohio, the group of spiritual leaders began offering training on self-managed abortion care a year ago and launched the Jubilee Fund for Abortion Justice this month.

The fund, which is accessible at JubileeAbortionFund.org, is set up as a religious charity to avoid the future seizure of assets should Ohio adopt laws like a rule in Texas goes after money raised to assist with abortions. Centralizing the collection and distribution of donations also would allow funds from resource-rich communities to help areas in greater need, Williams said.

With the next free virtual training session scheduled for July 6 at noon, the clergy hope to educate congregants and the general public on what Williams believes to be the moral obligation of delivering information — not advice — on medication abortion.

"It's more important now than ever that people not just know the protocols for mifepristone and misoprostol but that they're able to share that information in ways that won't get them arrested," Williams said.

Reach reporter Doug Livingston at dlivingston@thebeaconjournal.com or 330-996-3792.