- On Tuesday, Gov. Brian Kemp of Georgia signed HB 481, a bill banning abortion after five to six weeks of pregnancy.
- It’s set to take effect January 1, but at least two reproductive-rights organisations are challenging it on the grounds that it violates Roe v. Wade.
- In addition to banning abortion after a heartbeat can be detected, the law’s personhood provisions would seem to allow for women who perform their own abortions, travel out of state for an abortion, or are found to be responsible for a miscarriage to be charged with murder.
- While many states have recently approved six- or 15-week abortion bans in an effort to bring a case to the Supreme Court for the purposes of overturning Roe v. Wade, Georgia’s law goes further than others in holding women criminally responsible.
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On Tuesday, Gov. Brian Kemp of Georgia signed the “heartbeat bill” HB 481 into law. While the bill’s main goal is to outlaw abortion after five to six weeks of pregnancy, the law’s provisions establish fetuses as full people under the law – meaning women could be held criminally responsible for seeking an abortion or even for having a miscarriage.
Attorneys with the American Civil Liberties Union’s Reproductive Freedom Project and the Center for Reproductive Rights told INSIDER on Tuesday that they’re planning on challenging the law, which is set to take effect January 1, on the grounds that it violates Roe v. Wade, the landmark Supreme Court decision that protects the right to abortion until the point of viability.
For now, abortion is still legal in Georgia, and it will remain that way if the law, like every six-week ban that other states have attempted to enact, is struck down in court.
While many states have recently passed six- or 15-week abortion bans in an effort to bring a case to the Supreme Court for the purposes of overturning Roe v. Wade, the legal reporter Mark Joseph Stern pointed out in a recent Slate article that Georgia’s law went further than others in the criminal penalties women would face.
In addition to banning abortion after a heartbeat can be detected, the law’s personhood provisions:
- Allow fetuses to be claimed as dependents for tax purposes.
- Count fetuses as people in official population surveys, which would have implications for political representation.
- Allow for women who perform their own abortions outside a formal medical setting to be charged with first-degree murder, which could carry a sentence of up to life in prison or the death penalty.
By defining fetuses as people, the law would appear to have implications far beyond those directly addressed in its text. State prosecutors, for example, might be able to charge women whose pregnancies end in miscarriage with second-degree murder, which carries a sentence of 10 to 30 years, if they can prove the miscarriage was a result of the woman’s own conduct, like drug or alcohol use, as Slate argued.
In a follow-up interview with Slate, Georgia State Senator and attorney Jen Jordan explained that in a 1998 Georgia court case Hillman vs. State, prosecutors charged an 18-year old woman who shot herself in her abdomen while pregnant with attempting to “produce a miscarriage” – but a court threw out the indictment partly because they didn’t want to supersede the legislature, which had then “refused to criminalise a pregnant woman’s acts in securing an illegal abortion.”
At the time, the Court of Appeals explicitly said that changing the law to prosecute women who performed their own abortions, which HB 481 does, could warrant “a criminal indictment for virtually any perceived self-destructive behaviour during her pregnancy which could cause a late-term miscarriage, to wit: smoking or drinking heavily; using illegal drugs or abusing legal medications; driving while under the influence of drugs or alcohol; or any other dangerous or reckless conduct.”
A woman who travels out of state for an abortion – and anyone who assists her – might similarly be charged with conspiracy to commit murder under Georgia’s fetal personhood law.
Critics of the law found the prospect of criminalizing some miscarriages especially alarming given that approximately one in four first-trimester pregnancies ends in miscarriage, with the vast majority resulting from genetic abnormalities. Many women miscarry before they even know they’re pregnant, sometimes mistaking the bleeding from a miscarriage for a late period.
Georgia isn’t the only state that has begun testing the limits of the law by conferring personhood to fetuses and embryos. In Alabama, which enacted its own personhood statue in 2018, a district court gave the estate of a 6-week-old aborted embryo legal standing to sue an abortion clinic for wrongful death in a suit initiated by the embryo’s would-be father.
As the appellate attorney Andrew Fleischman pointed out on Twitter, establishing fetal personhood has implications not only for civil litigation but for the criminal-justice system as well, since it would extend the constitutional rights to due process, a fair trial, and the right to counsel for fetuses whose mothers have been charged with a criminal offence.
“Georgia has just passed a bill granting full 14th Amendment rights to all unborn children,” he wrote. “As of this minute, Georgia is now holding thousands of citizens in jail without bond in violation of their rights.
“If you’re a criminal defence lawyer with a pregnant client, now is the time to petition for a guardian ad litem or juvenile attorney to represent the unborn to secure their release.”
Under Georgia’s law, it’s unclear whether fetuses would be given their own separate trials or right to counsel if their mothers were charged with crimes, what would happen if a jury found a mother guilty but her foetus innocent, or whether all incarcerated pregnant women would have to be released from prison once the law goes into effect, since their fetuses were not charged with a crime.
Fetal personhood statues not only have untested implications for abortion but, if upheld by a court, could also jeopardize the legality of fertility treatments like in vitro fertilization or even surrogacy, both of which commonly involve the destruction of embryos that would qualify as people under the law.
While many prominent Democratic politicians and activists have expressed alarm over the law, previous legal precedent suggests its chances of going into effect are slim. Still, Georgia’s approving the law does reflect an increased fervor to drastically limit abortion, with the aim of bringing a case that could prompt the newly conservative-leaning Supreme Court to overturn Roe v. Wade.
So far, no state has successfully implemented a six-week abortion ban or brought a case testing the legality of one to the nation’s highest court. Iowa’s attempt at enacting a “heartbeat bill” was struck down by a state court, and North Dakota’s was struck down by a federal court for violating Roe v. Wade.
The governors of Mississippi, Ohio, and Kentucky have signed similar six-week abortion bans into law, all of which are being challenged in court. Alabama is set to pass a law banning all abortion, which will most likely be struck down, and a 15-week ban passed by Mississippi was blocked by a federal judge last year.
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