COLUMBUS, Ohio (WCMH) – Ohioans are divided on whether a 10-year-old rape victim is eligible for an abortion under the state’s heartbeat law.

Ohio’s top law enforcement officer and anti-abortion groups contend that the 10-year-old sexual abuse victim who traveled to Indiana for an abortion did not need to cross state lines – she could have had the procedure in Ohio, they said.

But others argue that Ohio’s heartbeat abortion ban is not that clear-cut.

“Ohio’s heartbeat law has a medical emergency exception, broader than just the life of the mother,” Attorney General Dave Yost told Fox News host Jesse Watters Monday. “This young girl […] she did not have to leave Ohio to find treatment.”

Hours after the U.S. Supreme Court overturned Roe v. Wade, Yost successfully petitioned a federal court to dissolve a three-year injunction against Ohio’s heartbeat bill. 

Signed into law by Gov. Mike DeWine in 2019, the heartbeat bill effectively outlawed abortion once fetal cardia activity is detected, usually at about six weeks’ gestation, and provides no exceptions for rape or incest.

State Rep. Jeffrey Crossman (D-Parma), who is challenging Yost in Ohio’s Attorney General race, told NBC4 that Yost’s interpretation of the heartbeat bill is “completely out of step.”

“He clearly didn’t even understand the law because he was claiming on FOX News that 10-year-old victims of rape had the right to seek an abortion which is absolutely not true,” Crossman said.

Three exceptions to Ohio’s heartbeat bill

Shortly after 27-year-old Gerson Fuentes was criminally charged in Franklin County with raping the 10-year-old, Yost issued an “explainer” outlining the three exceptions to Ohio’s heartbeat bill:

  • To prevent the death of the mother
  • Due to a “serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant mother”
  • In cases of an ectopic pregnancy

The second bulleted exception is largely the cause of disagreement in the case of the 10-year-old. Does giving birth as an adolescent constitute “serious risk of the substantial and irreversible impairment of a major bodily function?”

Conditions meeting that criteria under Ohio law, Yost said, include but are not limited to the following: preeclampsia, inevitable abortion, premature rupture of the membranes, diabetes and multiple sclerosis.

“Please note that the list of conditions is an illustration, and more conditions that otherwise meet the definition may be applicable to determining ‘medical emergency,’” Yost wrote in his explainer. “Whether these exceptions apply to a particular case depends on the facts of that case.”

In 2016, the most recent data available, 233 children between the ages of 10 and 14 gave birth in Ohio, according to the Ohio Department of Health. Another 4,410 children between the ages of 15 and 17 gave birth that same year.

No consensus on whether adolescent child-bearing constitutes ‘substantial harm’ 

In an email sent to NBC4, Crossman asked the Legislative Service Commission – the agency charged with writing and analyzing state lawmakers’ bills – whether minor victims of sexual assault can receive abortions under Ohio’s heartbeat bill, according to an email obtained by NBC4.

“No,” an LSC research analyst said in an email, “Ohio’s abortion prohibition applies regardless of the circumstances of conception or the age of the mother.” 

But Ohio Right to Life President and Columbus attorney Michael Gonidakis said “as grotesque as it sounds,” the 10-year-old could have walked into an abortion clinic for the procedure.

Giving birth as an adolescent comes with significant risk, Gonidakis said, that could lead to death or otherwise irreversible impairment – thus qualifying her under the heartbeat bill’s exceptions.

“A 10-year-old girl, according to medical professionals, could lose her life at that young of an age with a pregnancy or lose a substantial ability to have a normal life, future pregnancy, whatever the case may be,” Gonidakis said.

The American College of Obstetricians and Pediatrics of Ohio, however, is not convinced that a 10-year-old giving birth in Ohio would constitute “substantial harm” under the state’s six-week abortion ban, which an ACOG spokesperson called vague.

There have been documented cases worldwide of adolescents delivering healthy infants via caesarean section, or C-section, the ACOG Ohio spokesperson said. Given the potential for criminal charges or a suspended license, doctors may be hesitant to provide abortion services – even to youth.

Gonidakis called the fear of criminalization a “cop out,” as physicians make life or death decisions every day, not only in cases concerning abortion or adolescent child-bearing.

“In this case, a licensed physician should have known based on the standards of care and their training, especially if it’s a doctor that has expertise in child abuse, that under Ohio law, she would have qualified for an abortion,” Gonidakis said.

For every abortion that is performed, the physician is required under state law to send a report to the Ohio Department of Health, including the patient’s gestational age and circumstances behind the abortion.

“We’re not asking doctors to do anything new today that they haven’t had to do for the past ten, 15 years,” he said. “And if an abortion is performed that is questionable in the eyes of government, then the doctor would come in and sit down and explain here’s why I did it.”

David Hackney, president of ACOG Ohio, said the mere fact that law enforcement and elected officials are debating whether the 10-year-old is exempt shows that Ohio should not have enacted the heartbeat bill to begin with. 

“This isn’t a conversation that we should have to have,” Hackney said in a statement. “We should not have to debate how severe the harm to a ten year old has to be in order to qualify them to not be pregnant. It’s abhorrent and unethical and it’s atrocious that we are even discussing it.”

Where is the 10-year-old now?

The latest development in the case came as a Telemundo reporter knocked on the door of Fuentes’ home. A woman who identified herself as the 10-year-old’s mother answered the door and reportedly defended Fuentes, claiming “everything they are saying about him is a lie.” Her daughter, she said, is doing well.

A terminated pregnancy report filed by Indiana Dr. Caitlin Bernard indicated the 10-year-old had been abused. In an affidavit, Columbus police said Fuentes confessed to raping the girl on at least two occasions.