The U.S. Supreme Court’s June decision threw out federal abortion rights protections and lets states decided limits on access to the procedure. After the ruling, abortion rights supporters took to the streets of Atlanta in protest. Ross Williams/Georgia Recorder (file photo)
The U.S. Supreme Court’s ruling striking down Roe v. Wade has ushered in a new era for women’s health and legal rights, potentially far beyond the right to an abortion.
Under the decision released Friday, the states will be left to decide limits on abortion access. Georgia does not have a trigger law like some other states that would immediately ban abortions, but it does have an anti-abortion law on hold that could soon take effect.
Georgia’s 2019 law, officially titled the Living Infants Fairness and Equality (LIFE) Act, would ban most abortions once fetal cardiac activity is detected, usually after about six weeks into a pregnancy and before many women know they are pregnant.
The law was ruled unconstitutional in 2020 and has never taken effect. The state’s appeal of that decision has been temporarily held up in court since last fall pending the outcome of Dobbs v. Jackson Women’s Health Organization out of Mississippi.
Georgia Attorney General Chris Carr quickly asked the 11th Circuit Court of Appeals to let the state’s law take effect, triggering a process that will unfold over the coming weeks. The court has directed the parties in the case to file briefs addressing the impact of Friday’s ruling on the state’s appeal within three weeks.
“I believe in the dignity, value and worth of every human being, both born and unborn,” Carr said in a statement Friday. “The U.S. Supreme Court’s decision in Dobbs is constitutionally correct and rightfully returns the issue of abortion to the states and to the people – where it belongs.”
The prospect of the Supreme Court overturning a five-decade court precedent had left providers like Planned Parenthood and abortion rights advocates bracing for a post-Roe era.
Planned Parenthood Southeast, which has four clinics in Georgia, was working in advance of the ruling to draw up various plans to help women access services, including looking at ways to speed up the process of scheduling an appointment to adapt to the drastically shortened window, said Vivienne Kerly-de la Cruz, who is the Georgia State Campaigns Director for Planned Parenthood Southeast.
Georgians are also urged to take pregnancy tests as soon as possible because of the narrow window, Kerly-de la Cruz said. Embryonic cardiac activity could be detected sooner for some women than others, she noted, pushing back on the generalized shorthand of the law being a six-week abortion ban.
“Most folks have irregular periods, and so a missed period may not necessarily signal a pregnancy for some people,” Kerly-de la Cruz said. “If you think that there’s a possibility that you can be pregnant, you should be tested as soon as possible so that you can get all of the information about what your options are for care because HB 481 is going to make things very confusing and, again, it is not a six-week ban.”
‘Full legal recognition’
Georgia’s law is not the strictest abortion law in the country, but it would severely limit access to the procedure. It would ban abortions with only a few narrow exceptions: in the case of incest, rape or when a woman’s life is in danger. Today, an abortion in Georgia is legal up until 20 weeks into a pregnancy.
But the law goes further than banning most abortions. It includes a slate of controversial “personhood” language codifying that an unborn child is a “natural person” with rights just like those who breathe air.
“Georgia recognized when it passed the (bill) that living, distinct, whole human beings inside their mothers deserve full legal recognition, and that’s what Georgia did,” Acworth Republican state Rep. Ed Setzler, the bill’s primary author and a candidate for state Senate, said in an interview before the ruling was released.
“The LIFE Act is about recognizing the unborn child as being a legal person in social services setting, civil setting, child support setting, in a tax perspective, in terms of moms riding in HOV lanes, and, naturally, if the child is a human being, they’re not going to be subject to abortion.”
The act spells out what fetal personhood will mean in a number of circumstances.
If it is allowed to fully take effect, a pregnant mother will be able to seek child support from the father of her unborn child for up to the total cost of all direct medical and pregnancy related expenses. Once the child is born, the current child support law would kick in.
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Unborn children would also be counted in population-based determinations “unless otherwise provided by law,” which would likely exclude the reapportionment process following a census count but could include pro rata distributions of state funds for things like public health, supporters say.
Under the new law, unborn children with detectable cardiac activity will be considered a full person for civil liability purposes and can be claimed as a dependent for Georgia taxes.
“It recognizes the personhood of the unborn child throughout Georgia code in a common sense and appropriate way that recognizes the very difficult circumstances women find themselves in, but recognizes the basic right to life of a child who has their own heartbeat, they have their own blood type, they have their own DNA, they have their own gender, they have all the things they need, all they need is a safe place to live and nourishment to grow to full adulthood, ripe old age, like any other person,” Setzler said.
Weird stuff ahead?
But opponents of the state’s anti-abortion restrictions worry extending human rights to a class of beings not currently considered by the law to be sentient could test the legal system in unpredictable ways.
“Do I think there are some people who really wanted this, like Ed Setzler? Sure. Like (White Republican state Sen.) Bruce Thompson? Absolutely. They believe this,” said Atlanta Democratic state Sen. Jen Jordan, an attorney and candidate for state attorney general.
“But I had conversations with Republicans behind closed doors, where they were basically like, ‘Jen, I don’t know why you’re getting so worked up about this, this thing’s gonna get stopped by the courts, it’s never gonna go into effect. This is really just political maneuvering for us. We know it’s bad policy for the state of Georgia, but it’s good politics for us as Republicans. And they were very clear about that. So I think now, we’ve got a situation where there’s going to be an incredibly damaging law that’s going to go into effect, and nobody, including the people who were pushing it, who voted for it, who supported it, whatever, had any clue what they’ve done and the damage that it’s really going to do to the state on so many levels.”
Even with a Republican-controlled Legislature, the bill barely made it to Kemp’s desk three years ago. When it came back to the House for a final vote, the measure passed with just one “yes” vote to spare.
An influential Republican who has since passed away, Rep. Jay Powell, told a reporter back in 2019 he was not convinced lawmakers had fully explored the potential ramifications of establishing “personhood” at six weeks and, more specifically, the proposed income tax deduction. Powell voted against the bill on the final vote.
Jordan provided an example of one of the thorny legal questions that may be on the horizon: What about a woman who entered the country illegally and became pregnant in Georgia?
“They got pregnant in Georgia, (the fetus) is a Georgia citizen, and under Georgia law, they are a person,” she said. “I don’t think you can deport a Georgia citizen without due process. I don’t even know if you could detain a woman who’s pregnant, because what about the due process that is afforded to this person now in her womb? It’s kind of silly, but if we are saying that fertilized eggs are people, then they are supposed to be afforded all of the rights that any other person in this state who is a Georgia citizen is afforded.”
Jordan, who made national news for her dissent during the Senate debate on HB 481, said two big concerns are whether a woman who travels out of state for an abortion could be prosecuted for murder in Georgia as well as the potential effects on tort law.
“Imagine a woman walking into a big box store. She trips,” Jordan said. “She’s, at the time, six, seven weeks pregnant. She ends up having a miscarriage. She could sue the big box store for wrongful death at that point, and for money damages, significant money damages. So it’s criminal liability that it opens up, but it’s also tort liability, and I don’t think businesses really ever thought this was going to go into effect.”
Jordan also worries about the potential effects on women’s health care.
“We have 76 counties without an OB/GYN,” she said. “We have rural hospitals that are closing, we have a maternal mortality crisis, especially outside of Metro Atlanta, because we don’t have health care providers, we don’t have labor and delivery units. Well, if you are an OB/GYN, are you going to come to Georgia to practice if you know that you could be thrown in jail by providing care required by the standard of care to your patient?”
Jordan said fetal personhood also calls into question the future of popular fertility treatments like in vitro fertilization.
In that process, a woman’s eggs are fertilized outside of her body and then reimplanted, hopefully resulting in a healthy pregnancy. Because the process is expensive and does not always work, patients often choose to create more fertilized eggs than children they plan to have.
Leftover embryos are typically frozen and saved for future pregnancies, donated to science or other couples, or destroyed, all of which could present a problem if they are considered legal people.
“They talk about ‘this is really about life or about bringing children into this world,’ well, the laws that they have crafted are actually going to do the opposite,” Jordan said. “They’re going to do the opposite. And where you have parents and women who are desperate for children and who can take care of them and want them, that avenue is likely to be cut off.”
Supporters of the law say such arguments are paranoid and designed to detract from the coming victory for human rights.
“The very arguments that the pro-abortion lobbyists make are the same arguments that slaveholders made in the 18th and 19th century,” Setzler said. “And it’s sad, but we recognize that science, law and common sense tell us that the unborn children living inside their moms, sucking their thumbs and wiggling around, are people. And Georgia is wise to finally give them the full legal recognition they deserve, in every context, not just about abortion, but it’s about the personhood of the unborn child that we know.”
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