If Georgia’s strict anti-abortion law takes effect, uneven prosecutions could follow

Georgia’s coming fetal personhood law will likely have unpredictable legal ramifications. Photo: Abortion protest in Atlanta May 14, 2022. Ross Williams/Georgia RecorderGeorgia’s coming fetal personhood law will likely have unpredictable legal ramifications. Photo: Abortion protest in Atlanta May 14, 2022. Ross Williams/Georgia Recorder

by Ross Williams, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
July 18, 2022

With Roe vs. Wade a thing of the past and Georgia expected to enact its 2019 fetal personhood law any day now, women seeking abortions are set to enter unknown legal territory.

The law expands the concept of personhood to recognize an unborn child as a human being after about six weeks of pregnancy, meaning fathers could be responsible for child support before their children take their first breath, families could count their unborn offspring as dependents for state taxes, and pregnant women might be able to get out of traffic tickets for appearing to drive solo in an HOV lane.

Will women be prosecuted?

More consequentially, it raises risks for women who want to end their pregnancies and those who help them do so. Abortion rights advocates express concerns that murder charges could be leveled against abortion patients along with conspiracy charges against people who help them.

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“Specifically with respect to inclusion of the personhood language, if you think about it from the perspective of, could the state of Georgia prosecute you if you took another human being, an adult, over state lines and killed that person and then came back, could you be prosecuted in Georgia? Yeah, yeah, you could,” said Democratic state Sen. Jen Jordan of Atlanta. “So, it’s one of those things that the kind of unintended consequences of this are incredible, just in terms of statutory interpretation and application.”

Jordan, a lawyer and the Democratic nominee for state attorney general, spoke against the abortion bill in the state Senate and pledged not to defend it if she is elected.

Some local district attorneys have pledged not to enforce the law, including seven from across Georgia who signed onto a June 24 open letter.

“Not all of us agree on a personal or moral level on the issue of abortion,” the prosecutors wrote. “But we stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions. As such, we decline to use our offices’ resources to criminalize reproductive health decisions and commit to exercise our well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”

Other top prosecutors including District Attorney Shannon Wallace of Cherokee County told the Recorder they will not ignore the new law.

“As the District Attorney of the Blue Ridge Judicial Circuit, I believe it is my statutory duty to enforce the duly enacted laws of our General Assembly by prosecuting those who violate these laws,” she said in an email. “When/if Georgia’s abortion law goes into effect, my office will treat violations of OCGA 16-12-140 (criminal abortion) just as we do all other violations of criminal statutes prosecuted in this circuit. We will perform a case-by-case assessment of charges taken by law enforcement and prosecute those in which there is sufficient evidence to prove a violation of the law occurred.”

Democratic state Rep. Renitta Shannon of Decatur told a U.S. House committee Wednesday she fears law enforcement could disproportionately target women belonging to racial minorities who have miscarriages.

“What a lot of people don’t realize is that a lot of the same medications that are used for miscarriage are also used for medication abortion, which is typically performed at home, and there’s really not a way to determine of someone had a miscarriage or if someone had an abortion,” she said. “What we do know is that our criminal legal system is really good at locking up Black and brown folks, and so I am very worried that when a person has a miscarriage and interrogated by law enforcement or they are prosecuted, I’m very worried that our criminal legal system will likely believe Karen but not believe Keisha when she says she had a miscarriage.”

Legal protections

Even under the new law, women should not be prosecuted for ending their own pregnancies, said Farah Diaz-Tello, senior counsel and legal director at If/When/How, a reproductive justice organization that offers a free legal helpline for those with questions about the law.

“In Georgia, even with a fetal personhood provision, there isn’t a provision of law that would clearly authorize criminal prosecutions of people for having abortions or ending their own pregnancy, and this is a long-standing precedent,” she said. “There are appellate decisions in Georgia that say that abortion laws and other laws can’t be used to charge a person with a crime for having ended their own pregnancy. And the provisions of law that those decisions rely on aren’t changed by the potential change coming to Georgia law.”

But that hardly means women will be able to manage their own abortions without legal scrutiny, she added.

She gave the example of the 2015 case of Albany resident Kenlissa Jones, who was arrested for malice murder after she took abortion pills and miscarried. The Dougherty County district attorney dropped the case after determining that Georgia law does not permit criminal prosecution of a pregnant woman for actions against her own unborn child.

Jones was released, but only after having been arrested and interrogated while suffering from an obstetrical emergency, Diaz-Tello said.

“The question of whether somebody is a direct target of the law – Georgia’s law will not make people a direct target – is not the same thing as whether they end up being essentially collateral damage to state lawmakers trying to restrict abortion,” she said. “So, I think the takeaway from the situation that Miss Jones faced in 2015 isn’t that people will be safe, but rather, this is going to intensify the possibility that people are going to face these types of criminal investigations and even prosecutions.”

Diaz-Tello said she fears situations where a prosecutor does not change course or persuades the woman to plead guilty in exchange for a more lenient sentence.

Workarounds

More than half of abortions in the U.S. are done by taking a series of pills rather than through surgery. The pills were approved in 2000, and the FDA recently issued guidance allowing them to be delivered by mail, though in practice, access depends on where you live.

A bill that would have limited access to abortion pills cleared the Georgia Senate but did not get House approval this year.

Those pills will still be available once the law changes, said Elissa Wells, co-founder and co-director of Plan C, a group that publishes information on how people can receive abortion pills in different states.

Plan C’s website for Georgia lists telehealth options currently available for Georgians seeking an abortion, but Wells said she’s expecting they will be contacting those providers once the law changes to reassess their availability.

“There will still be ways to get an abortion by mail in Georgia, even with this law,” she said. “They’re medically safe, and they are often clinician supported, actually. But anytime you’re going outside the normal route of access, there’s the potential for criminalization, whether you’ve done anything wrong or not.”

Some people in other states with restrictive laws access abortion pills using mail-forwarding services, she said.

In some cases, women get tangled up in the legal system after seeking medical care following a medication abortion, typically after self-reporting that they took abortion pills, Wells said.

Unless one of the pills has not fully dissolved, there is no way for a physician to know, she added.

“There’s no way that a clinician can tell, and there’s no need to tell the clinician that you’ve done that in order to get the correct treatment because it’s exactly the same treatment that you would get if you presented with a miscarriage,” she said. “We try and make that information clear to people.”

Wells said she recommends people in restrictive states consider their digital security before checking out the website. She said she is concerned Plan C may be accused of running afoul of a state law with rules constantly shifting.

“But at the same time, these laws are illegitimate, they are racist, they’re sexist, classist, and we need to stand up to these legislators passing these unjust laws and bullying people into this fearful situation about what should be basic medical care,” she said. “So we’re going to persist in spreading the word and helping normalize this very safe, very effective form of abortion.”

She said she’s heartened by district attorneys coming out against the law, but she’s not optimistic about their ability to prevent harm.

“It’s so hard to know how it will play out in practice,” she said. “There could be rogue prosecutors who find that it’s their business to get other peoples’ business and prosecute them. I’ve also heard calls from anti-choice people saying ‘enforce the law, it’s your job to enforce the law.’ So how that will play out is anybody’s guess.”

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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