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In re Blackshear9/7/1999
the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. Id. at 846, emphasis added.
Thus, while Roe, et al. may have excluded a fetus from the category of "persons" under the Fourteenth Amendment, these cases nonetheless do not eliminate the interest of the State in protecting a viable fetus:
" ubsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Roe v. Wade, 410 U.S. 113, 164-165.
Appellant further relies on two Ohio Supreme Court holdings in the realm of criminal law. In State v. Dickinson (1971), 28 Ohio St.2d 65, the Court held that a viable fetus not subsequently born alive was not a "person" within the scope of the vehicular homicide statute. In State v. Gray (1992), 62 Ohio St.3d 514, the Court refused to allow a criminal prosecution for child endangering against a mother for substance abuse during her pregnancy. However, in Williams v. The Marion Rapid Transit, Inc. (1949), 152 Ohio St. 114, paragraph two of the syllabus, the Supreme Court of Ohio established a child who is en ventre sa mere (viable in the mother's womb) is in fact a "person": 2. Injuries wrongfully inflicted upon an unborn viable child capable of existing independently of the mother are injuries 'done him in his * * *person' within the meaning of Section 16, Article I of the Constitution and, subsequent to his birth, he may maintain an action to recover damages for the injury so inflicted. Id.
We are cognizant that Williams predated Roe; however, nearly twelve years after the latter landmark case the Supreme Court of Ohio similarly ruled that a viable fetus negligently injured en ventre sa mere, and subsequently stillborn, could be the subject of a wrongful death action under R.C. 2125.01. Werling v. Sandy (1985), 17 Ohio St.3d 45. The Court reasoned: The court found the compelling point in the state's legitimate interest of protecting potential life to be at viability, as the fetus, at that time, has the capability of meaningful life outside the mother's womb. It follows, therefore, that our decision is entirely consistent with Roe to the effect that a viable fetus is a person entitled to protection and may be a basis for recovery under the wrongful death statute. Id. at 49.
If Ohio law thus allows for such civil remedies in tort, even in light of Roe, et al, we are not persuaded that the juvenile court's remedy of an abuse finding based on Lorenzo's prenatal exposure to cocaine is per se a violation of appellant-mother's constitutional rights. Unlike in Dickinson and Gray above, we are not required to strictly construe statutory terms in favor of the accused; the present Chapter R.C. 2151 action is civil in nature (see, e.g., In re Bolden (1973), 37 Ohio App.2d 7, 34) and brought by the State not against an "accused" parent, but brought in the name of the child
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