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The Pre and Post-Roe Relevancy of Fetal Remains Laws
Allie Frazier | 17 March 2022
In June 2021, the dismembered remains of a child estimated to be 17 weeks gestation were found discarded in a dumpster behind an abortion facility roughly four miles north of Akron, Ohio.[i] Only a scattering of parts from the child’s body were able to be recovered, among them a leg, a foot, and a mass of human tissue so badly mangled that pro-life advocates could only surmise it had comprised part of the child’s torso.[ii]
In the wake of these shocking findings, Right to Life of Northeast Ohio, along with Ohio Right to Life and Citizens for a Pro-Life Society, immediately began exploring possible avenues to hold the abortion facility, known as Northeast Ohio Women’s Center, responsible, along with its owner and operator Dr. David Burkons. One of the first avenues explored was a pro-life protection signed into law a few months before: S.B. 27, the Unborn Child Dignity Act.
The Unborn Child Dignity Act is a law that regulates the disposal of fetal remains by requiring that the preborn victims of abortion are given a humane burial by either earthly burial or cremation.[iii] Surprisingly, the passage of this common-sense requirement was met with resistance by both pro-life and pro-choice advocates. Some pro-life advocates speculated that the law was too little too late while countless pro-choice advocates attempted to discredit it completely. During opponent testimony for the bill, an abortion activist representing NARAL Pro-Choice Ohio went so far as to call S.B. 27 a “sham, based on inaccurate information” and a “witch hunt.”[iv]
As evidenced by the actions of Northeast Ohio Women’s Center, the need for the Unborn Child Dignity Act is all too real. Without fetal remains laws, the abortion industry is able to not only kill and brutalize preborn babies, but also discard the evidence of that violence in whatever manner they see fit. As mentioned in a previous piece for this publication, before S.B. 27, Ohio Code stipulated that fetal remains be disposed of in a “humane manner” but failed to define humane.[v] In a practical sense, this lack of clarity amounted to writing a blank check for the abortion industry, enabling them to do whatever they saw fit with the broken bodies of their victims.
Unfortunately for advocates in northeast Ohio and beyond, a Hamilton County Judge signed that blank check when she blocked Ohio’s Unborn Child Dignity Act from going into effect a matter of weeks before Northeast Ohio Women’s Center threw the aforementioned baby’s body into their dumpster.[vi] Without the available enforcement of S.B. 27, obtaining justice for baby “Gianna John” as advocates named the tiny victim, became that much more difficult.
Although it is easy to dwell on the devastating impact pro-abortion judges have on the implementation of pro-life laws, the blocking of S.B. 27 only underlines the importance of this type of legislation in enabling the pro-life movement to hold the abortion industry accountable. Despite setbacks, the Unborn Child Dignity Act is relevant and needed, and will remain so after Roe v. Wade is overturned. As is the case with many pro-life laws, the hope of many advocates is that once Roe is overturned, life-affirming protections such as the Unborn Child Dignity Act will finally have the legal ability to be implemented without becoming indefinitely trapped in court. If so, they may finally be able to serve their intended purposes. For example, consider the following post-Roe scenario.
In the event that Ohio’s Human Life Protection Act, a “Trigger Ban” which would end almost all abortions in Ohio post-Roe, is not passed before Roe is overturned, the Human Heartbeat Protection Act will become Ohio’s most comprehensive pro-life law. The “Heartbeat Bill,” as it is commonly referred to, would then ban abortion in Ohio after a fetal heartbeat can be detected. This piece of legislation will form the best pro-life protection Ohio has seen in recent memory but will not end abortion completely. Despite media outlets describing the Heartbeat Bill as a “6-week ban,” a fetal heartbeat can potentially not be found until as late as 12 weeks, depending on the method of ultrasound employed, among other factors.[vii] With this in mind, the Unborn Child Dignity Act could still apply to many preborn children killed by abortion, specifically those killed through surgical methods.
It is helpful to note that S.B. 27 applies only to preborn children killed by surgical abortions. Although chemical abortions are rapidly becoming the most common type of abortions committed, surgical abortions still claim the lives of thousands of preborn children in Ohio every year. In fact, Ohio’s most recent induced abortion statistics reported that 10,792 surgical abortions were committed in the state during 2020.[viii]
Until that time at which abortion is ended in the U.S., the Unborn Child Dignity Act will still be a vital piece of pro-life legislation. At the time of this writing, only 18 states have pro-life protections comprehensive enough to be considered a meaningfully “abortion-free” state post-Roe. Although it’s widely expected that many states will ban abortion in the near future, at present, abortion will remain legal in some or all cases in 32 of the 50 U.S. states once Roe v. Wade is overturned.[ix] In those states, fetal remains laws will be yet another pro-life legislative tool with which to educate society on the brutality of abortion and increase accountability for the unconscionable actions perpetuated by the abortion industry.
Whether the courts will ultimately uphold Ohio’s Unborn Child Dignity Act may remain to be seen, but the need for this legislation does not. To northeast Ohio, Dr. David Burkons’s still-operating facility stands as a grim reminder that fetal remains laws represent much more than a sentimental attempt to humanize the preborn. Right to Life of Northeast Ohio was able to bury what was left of Gianna John’s body, but how many other babies are never afforded that same dignity? Laws like the Unborn Child Dignity Act remain a critical tool in the pro-life movement’s tool belt and will most likely be so even after Roe is confined to the ash heap of history. Regardless, we must hope and pray that one day this legislation will serve its ultimate goal: to ensure that no innocent child’s life is taken by abortion and that we no longer have a need ensure that the broken bodies of babies are humanely buried.
[iii] See Senate Bill 27
[viii] See 2020 Induced Abortions in Ohio
Right to Life of Northeast Ohio