From miscarriage liability to taxes, lots to sort out in Georgia’s anti-abortion law

Georgia State Capitol on mostly sunny dayDXR, CC BY-SA 4.0 , via Wikimedia Commons

by Jill Nolin, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
July 22, 2022

A court decision ordering Georgia’s anti-abortion law to immediately take effect Wednesday has left a trail of uncertainty and unanswered questions in its wake.

The state’s abortion providers, who expected the law to take effect later in the summer, were left scrambling Wednesday to adjust quickly to a drastically shortened window for abortions.

The law, which narrowly passed in 2019 as HB 481, bans most abortions once fetal cardiac activity is detected – which is usually after about six weeks and before many women know they are pregnant. Before Wednesday, Georgians could have an abortion up until nearly 22 weeks in some cases.

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Planned Parenthood Southeast’s four clinics in Georgia will continue to provide medication abortion, just now only up until six weeks. The Feminist Women’s Health Center in Atlanta also said it would continue to offer abortion services before fetal cardiac activity is detected and care in some emergency cases, stressing on social media that “early abortion care is still legal in Georgia.”

The new law’s compressed timeframe means it is now important to take a pregnancy test as early as possible, said Lauren Frazier, Planned Parenthood Southeast’s communications director.

“The earliest a person can test for pregnancy is from the first day of a missed period. This means you’re already 4 weeks out with only 2 weeks left to figure out that you’re pregnant, make a decision, and get an appointment scheduled with an abortion provider. After that, your choices are to remain pregnant or leave the state to get care,” Frazier said.

For someone just seven weeks along, that could mean a trip to North Carolina or Florida, according to abortionfinder.org.

Georgia’s law allows only a few narrow exceptions: in the case of incest or rape – if the patient can provide a police report – or when a woman’s life is in danger.

But the law does much more than ban most abortions after six weeks. Wednesday’s ruling also allowed the law’s so-called personhood language to take effect, allowing expecting parents to claim their offspring as a dependent minor while still in utero and redefining “natural person” to include an unborn child.

The ruling seemed to catch even some state agencies off guard.

“The Department has been actively monitoring this legislation and is refining guidance in light of yesterday’s judicial decision. We will be releasing more information as soon as possible,” state Department of Revenue spokesman, Mason Rainey, said when asked Thursday how the income tax provision would work.

The personhood language in the law will likely have broad and far-reaching impacts on Georgia’s state code – the extent of which will take time to understand, says Anthony Michael Kreis, a constitutional law professor at Georgia State University.

Kreis said he believes the court ruling correctly rejected a challenge that the personhood provision was unconstitutionally vague.

“It’s an incredibly sweeping new definition,” Kreis said Thursday. “And by altering every civil and criminal law in Georgia to redefine person in this way is a drastic departure from the status quo. But just because it’s a major shift doesn’t necessarily mean it’s vague, and I think people are disconcerted by that massive amount of change, and understandably so.

“To me, that’s not a vagueness problem. That’s just a policy problem,” he said.

Kreis argues there are many open questions, including whether a woman could be investigated for a miscarriage, whether a pregnant woman with an eating disorder is committing child abuse – and if the state should be alerted under mandatory reporting rules – and whether a wrongful death action could be pursued against a Georgian who travels out of state for an abortion.

Also, would a woman who is eight weeks along who acquires abortion medication in another state be committing murder if she takes the drugs back on Georgia soil?

“Those are the kinds of things we will only find out over time through prosecutions and litigation,” Kreis said. “To me, none of those questions are vague. The answer is ‘yes’ to all of those things.”

Elizabeth Reed, leadership director for the Georgia Life Alliance, which is an anti-abortion advocacy group, called talk of women being prosecuted “fear mongering” on Martha Zoller’s Gainesville-based radio show Thursday. Reed also panned concerns about how the law would affect the medical community’s ability to provide care for miscarriages and ectopic pregnancies, arguing those are not abortions.

Zoller is the Georgia Life Alliance’s director.

“I don’t know how many interviews I’ve done in the last few days,” Zoller said on the show. “where I’ve said, ‘Look, stop the hair on fire stuff. Let’s just get this bill implemented. Let’s see what’s happening. Let’s look at it objectively. There’s probably going to be things we’re going to have to change next year. There are probably going to be things we’re going to have to work on. But what I’ve seen from this Legislature is they’re willing to do that.”

In the meantime, Kreis says he expects the legal action to move to the state courts.

State Sen. Jen Jordan, an Atlanta Democrat who is running for attorney general, has said she would file a challenge in the state courts if elected the state’s top attorney that would test whether Georgia’s right to privacy could block the law, although someone else may beat her to it. Leading Georgia Democrats like Stacey Abrams, who is running for governor, say they believe such a challenge could still stand a chance of overturning the law.

“While disappointing, the 11th Circuit’s decision is not unexpected,” Jordan said in a statement immediately after the ruling was issued. “We know the assignment now. The U.S. Supreme Court said this fight belongs in the states, so we must challenge this law in the state courts, and we must elect state leaders who will protect access to reproductive healthcare.”

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.

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