Women could get up to 30 years in prison for having a miscarriage under Georgia's harsh new abortion law
- On Tuesday, Georgia Governor Brian Kemp signed HB 481, a so-called "heartbeat bill" that would ban abortion after 5-6 weeks of pregnancy into law.
- It's set to go into effect in January 1, 2020, but at least two reproductive rights organizations 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 allow for women who perform their 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 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, Georgia's law goes further than others in criminalizing women specifically.
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On Tuesday, Georgia Governor Brian Kemp signed HB 481, a so-called "heartbeat bill" 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 criminalized for seeking abortions or even for suffering miscarriages.
Attorneys with the ACLU Reproductive Freedom Project and the Center for Reproductive Rights told INSIDER on Tuesday they're planning on challenging the law, which is set to go into effect January 1, 2020, 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.
As of now, abortion is still legal in Georgia and will remain that way if the law, like every other six-week ban 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, Slate legal reporter Mark Joseph Stern pointed out in a recent article that Georgia's law goes further than others in criminalizing women themselves.
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 of 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.
- Allow for prosecutors 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.
- Enable state prosecutors to charge a woman who travels out-of-state for an abortion - and anyone who assists her - with conspiracy to commit murder under Georgia's fetal personhood law.
Critics of the law found the possible criminalization of miscarriage especially alarming given that approximately one in four first-trimester pregnancies end in miscarriage, with the vast majority resulting from genetic abnormalities. Many women miscarry before they even know they're pregnant, and mistake 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 six-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 appellate attorney Andrew Fleischman pointed out on Twitter, establishing fetal personhood not only has implications 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 offense.
"Georgia has just passed a bill granting full 14th Amendment rights to all unborn children. As of this minute, Georgia is now holding thousands of citizens in jail without bond in violation of their rights," he wrote.
"If you're a criminal defense 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 so far 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 fetus innocent, and if 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 un-tested implications for abortion but if upheld by a court, could also jeopardize the legality of fertility treatments like in-vitro fertilization (IVF) or even surrogacy, both of which commonly involve the destruction of embryos which would qualify as people under the law.
While many prominent Democratic politicians and activists expressed alarm over the law, previous legal precedent suggests its chances of going into effect are slim. However, Georgia passing the law does reflect an increased fervor to drastically limit abortion, with the aim of bringing a case that could overturn Roe v. Wade to the Supreme Court.
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 an 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 ban legislation into law, all of which are currently being challenged in court. Alabama is set to pass a law banning all abortion which will likely be struck down, and a 15-week ban passed by Mississippi was blocked by a federal judge last year.