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.
What You Need To Know
- 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, 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 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.
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 criminalize 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 behavior 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 offense.
“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 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 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, 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.
(Reporting by INSIDER)
Read Georgia’s controversial anti-abortion law, similar to others enacted in various US states, below:
St. Louis Abortion Clinic To Defy Missouri, Refuse To Perform Pelvic Exam
ST. LOUIS (AP) — Missouri’s only abortion clinic, already facing the threat of losing its license, says it will defy the state by refusing to perform a required pelvic examination days before an abortion.
Calling the exam requirement “disrespectful and dehumanizing,” a Planned Parenthood spokeswoman confirmed that as of Thursday the St. Louis clinic no longer performs it during a consultation at least 72 hours before an abortion. Doctors do perform a pelvic exam at the time of the procedure.
Plans to drop the preliminary pelvic exam were first reported by CBS News.
Planned Parenthood spokeswoman Bonyen Lee-Gilmore said the exam is not required by state law but is an intrusive health department regulation. The health department didn’t immediately respond to messages seeking comment but said earlier this month that the pelvic exam at the time of consultation is required by law.
Dr. Colleen McNicholas, an abortion provider at the clinic, said the decision to drop the preliminary exam was based partly on feedback from patients.
“We believe continuing to force an additional invasive and uncomfortable vaginal exam on patients at least three days before her abortion procedure, when it is not medically indicated, and when she will have the identical exam on the day of the abortion procedure, is not patient-centered; it is disrespectful and dehumanizing,” McNicholas said in a statement.
The health department let the clinic’s license lapse as of May 31, but a judge’s order has kept it open and allowed abortions to continue.
Judge Michael Stelzer said the state can’t simply let the license lapse but must decide whether to deny it or renew it. The state’s decision could be announced Friday at a court hearing in St. Louis.
Health department officials have cited concerns at the clinic, including that three “failed abortions” there required additional surgeries and another led to life-threatening complications for the mother, The Associated Press reported Tuesday, citing a now-sealed court filing.
Should the St. Louis facility close, Missouri would be the first state without a functioning abortion clinic since 1974, the year after the landmark Roe vs. Wade decision that legalized abortion nationwide, according to Planned Parenthood.
The licensing fight in St. Louis comes as lawmakers in Missouri and other conservative states have passed new restrictions that take aim at Roe. Abortion opponents, emboldened by new conservative justices on the Supreme Court, hope federal courts will uphold laws that prohibit abortions before a fetus is viable outside the womb, the dividing line the high court set in Roe.
Republican Gov. Mike Parson signed legislation on May 24 to ban abortions at or beyond eight weeks of pregnancy, with exceptions for medical emergencies but not for rape or incest. Efforts to put the new law to a public vote are tied up in court.
Missouri’s Only Abortion Clinic Will Remain Open, Judge Rules
ST. LOUIS (AP) — A judge has issued an order allowing Missouri’s only abortion clinic to continue providing the service.
St. Louis Circuit Judge Michael Stelzer ruled Friday, just hours before the St. Louis Planned Parenthood clinic’s license to perform abortions was set to expire. He issued a temporary restraining order prohibiting Missouri from allowing the license to lapse.
The Missouri Department of Health and Senior Services had declined to renew the license. It cited concerns with “failed abortions,” compromised patient safety and legal violations at the clinic. Agency officials also wanted to interview additional physicians at the clinic.
Planned Parenthood officials had said that if the license lapsed, Missouri would become the first state without an abortion clinic since the U.S. Supreme Court’s 1973 decision legalizing abortion nationwide.
As Missouri’s Last Abortion Provider Nears Closing, Neighboring Clinics Prepare
With hours to go before the expiration of a state license that allows a Planned Parenthood health center in Missouri to perform abortions, clinics in neighboring states say they’re preparing for an influx of additional patients.
“No one one knows what’s gonna happen in the next day or two, but we have to be ready for this clinic to be closed, and for patients to have nowhere else to go,” said Dr. Erin King, who runs a health center in Illinois across the river from the Planned Parenthood clinic in St. Louis.
King said her facility, the Hope Clinic for Women in Granite City, Ill., has been hiring additional doctors and medical support staff for more than a year in preparation for the possibility that abortion could be restricted in Missouri. Illinois is one of several states considering legislation to expand abortion rights as states including Missouri work in the opposite direction, passing laws banning the procedure in the early stages of pregnancy.
Missouri Gov. Mike Parson last week signed a law criminalizing most abortions after eight weeks. That law has yet to take effect, but the dispute between Planned Parenthood and the Missouri Department of Health and Senior Services over regulatory enforcement is threatening to shut down abortion services at Missouri’s last remaining clinic.
Parson said this week that Missouri health regulators have safety concerns about the clinic. Planned Parenthood officials say they’ve done all they can to comply, and accuse the state of arbitrarily enforcing regulations for political reasons. The two sides have been unable to reach an agreement, and Planned Parenthood has filed a lawsuit asking for a restraining order to prevent the center from being forced to stop offering the procedure.
Providers like King in neighboring states say they’re watching the situation and expecting to take additional patients from Missouri.
“[This] is happening much more quickly than any of us anticipated, so we’re really scrambling” to communicate with patients and open up additional appointments for abortions in the coming days, King said.
Michele Landeau of Gateway Women’s Access Fund, which helps Missouri women pay for abortions, said her organization is looking at ways to connect patients with clinics outside the state and help arrange for transportation, childcare, and other needs.
“People are confused, and they’re scared, and it’s pretty chaotic-feeling right now,” Landeau said.
Abortion providers in other neighboring states said they’re expecting additional patients from Missouri, and planning accordingly.
“We will do our very best to serve any women from Missouri that need to see us,” said Rebecca Terrell of CHOICES health center in Memphis, Tenn. “It may be that we have to add hours; we may have to open on a Saturday; we may have to make some changes, but we will make sure that everybody gets seen.”
In Wichita, Kansas, Julie Burkhart of the Trust Women clinic, said she would expect to see more patients from central, southern, and western Missouri if the St. Louis facility stops providing abortions. She said her facility might look at expanding its hours, but it would take time to hire, train, and license new staff members.
Abortion rights opponents have praised Missouri regulators’ scrutiny of the St. Louis clinic.
In a statement, Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List, said ending abortion services there “would be good news for health and safety.”
If the St. Louis clinic loses its license, some hospitals in the state could still offer the procedure, primarily for medical emergencies, Planned Parenthood officials say.
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