ATLANTA — With a lawsuit challenging Georgia’s new abortion law underway, questions surround the legal and medical implications.
The new law prohibits abortion once a fetal heartbeat is detected, generally at six weeks of pregnancy, which would give women only two weeks to notice a missed menstrual cycle.
Sen. Michelle Au, who is also a metro Atlanta physician, voted against HB 487, or the Georgia LIFE Act, before it was signed by Gov. Brian Kemp in 2019.
“To me, it’s really a stomach-turning violation of what I consider the foundational medical ethics that we all took a vow to serve,” Au said. “And it’s really unconscionable the type of overreach that we’re seeing into the sacred doctor-patient relationship that we swore to uphold.”
Exceptions to abortion are allowed up to 20 weeks for rape and incest if a police report is filed and for medical emergencies. But the law’s vagueness is likely to present challenges and issues to medical and legal professionals.
Professor Anthony Michael Kreis, a constitutional law professor at Georgia State University, alluded that the law was likely crafted as a political signal and not intended to carry the force of law.
Au and Kreis broke down sections of the bill during a webinar July 28.
Fetus has same rights as a born child
Kreis said Section 3 is the most sweeping part of the new law.
The section considers a “natural person” any human being, including an unborn child defined as a “member of the species Homo sapiens at any stage of development who is carried in the womb.”
Au said it contradicts sections related to detection of a fetal heartbeat.
“It does create this sort of tension of we’re talking about having a cut off that is supposedly delineated by Doppler electrical cell activity … but then they kind of expand it to say at ‘any stage after conception’ is considered a child,” Au said.
She added it could create troubling effects as seen in other states that are considering restrictions on contraception, IUD, Plan B or IVF and other fertility practices.
“I wonder if having this in this bill, even though there’s no criminal outcome from getting abortion care prior to the six week cut off, is it allowing that door to be open to expand personhood to cover criminal tech all the way up to conception essentially?” Au said.
Dubbed the “heartbeat bill” by Republicans, Au said she is against the label, arguing that the purported heartbeat typically detected at six weeks is instead electrical cell activity.
“When we think about the form and function of a heart, we think about something that serves a very specific purpose, right? We think about something that circulates blood that beats with chambers and valves. … And that feeds other organs, right, and sustains independent electrical activity,” Au explained. “That seen on Doppler ultrasound at six weeks of gestation does none of those things. So it’s an emotional picture that’s being painted not the scientific one and it’s being used under the auspices of science to advance an agenda.”
Further in the bill, section 5 gives courts permission to impose financial support on the father of an unborn child in the amount of direct medical and pregnancy-related expenses of the mother of the unborn child; Section 12, allows a fetus with a detectable human heartbeat to qualify as a minor dependent for tax purposes.
“Section 12 I think, to be charitable, was frankly done as a way to counteract the harshness of the abortion ban,” Kreis said. “To say, ‘We’re gonna give you more resources, more financial benefits,’ and I think that the thrust of that is generally something that even I find to be terribly problematic. “
Kreis said by redefining personhood, other criminal statutes could now include fetuses.
“That also puts an aggressive prosecutor in a position of having to pick something else if they really want to and I think that there’s plain reading of the language that’s probably required of them, so that’s probably a plausible legal theory to pursue and that’s very tough,” he said. “It’s a tough position to put anybody in but it’s certainly going to have a chilling effect on women.”
Who is criminally liable for an abortion in Georgia?
HB 487 defines abortion as the act of using, prescribing or administering any instrument, substance, device or other means with the purpose to terminate a pregnancy.
The criminal component of the bill appears to be directed at physicians, not the woman obtaining the abortion; however, Kreis said two sentences of the bill could be interpreted to allow prosecution of women.
The bill indicates there shall be an affirmative defense to prosecution if “a woman sought an abortion because she reasonably believed that an abortion was the only way to prevent a medical emergency.”
While ectopic pregnancy or the removal of an unborn child is not considered an abortion, one viewer of the July 28 webinar asked how to prove a woman didn’t intend to have a miscarriage.
Au responded by indicating a woman taking the abortion pill (mifepristone and misoprostol), which is effective before 10 weeks of pregnancy and having a spontaneous abortion would be indistinguishable.
She referenced a recent case where a woman had a miscarriage but was reported by her health care provider who suspected her of violating the Texas abortion ban.
“What I worry about in that case is that it’s actually going to discourage patients who are having spontaneous abortions or having issues with their early pregnancy from seeking that care because they’re going to be worried that they can’t prove it,” Au said. “They can’t prove that they didn’t seek abortion care and that they may be charged or criminalized under this law that Georgia has now.”
Medical professionals are not permitted to perform abortions based on a diagnosis or claim of a mental or emotional condition of the pregnant woman who may claim to “purposefully engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.”
However, medical personnel can perform an abortion if they determine, in reasonable medical judgment, that the unborn child has a condition that won’t allow it to sustain life after birth.
Physicians can also use their judgment to perform an abortion in the case of a “medical emergency,” defined as necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman.
“So what does it mean for a pregnant woman to have a substantial or irreversible physical impairment of a major bodily function? That’s pretty narrow exceptions to be clear,” Kreis said. “And there’s a lot of wiggle room in there where a doctor is basically going to say, ’Is my medical judgment going to prevail here. … I understand this provision to let me perform this form of health care, or am I afraid that I’m going to be subject to being second guessed by a prosecutor or law enforcement?’”
For the homicide of an unborn child, the right to recover for the full value of the life shall begin at the point at which “a detectable human heartbeat is present,” according to the law.
Au expressed concern that if a physician performs a service such as anesthesia on a patient, who is unknowingly pregnant, and the woman miscarries, could the doctor be charged with murder?
Pointing to another section of the law, Kreis said unintended consequences of a medical practice or routine medical practice won’t be criminalized with proper proof of health care performed.
“This is another one of those scenarios where there is some ambiguity, we don’t know how it will look. What we do know is that there is the potential for liability here and this would also potentially be a form of medical malpractice now. … So I think that there’s a new sweep of Georgia tort law potentially here and we don’t know how that shakes out unless the court strikes it down,” Kreis said.
Does the abortion law violate right to privacy?
Questions on whether having open access to medical records is consistent with the right to privacy as given in federal and state protection have also been raised.
Following the U.S. Supreme Court’s June 24 decision to overturn Roe v. Wade — a 1973 Supreme Court ruling that the Fourteenth Amendment’s due process clause protects the right to privacy, including a woman’s right to terminate her pregnancy — the 11th Circuit U.S. Court of Appeals allowed Georgia’s abortion ban to take effect July 20.
Within a week, Georgia physicians, reproductive health care providers and advocates filed a lawsuit in Superior Court of Fulton County stating the new law violates “Georgia Constitution’s rights to privacy, liberty and equal protection.”
Lines 152-154 in the law states that health records shall be available to the district attorney where an abortion occurs or where the woman receiving an abortion lives.
The current lawsuit focuses on the privacy provisions in the Georgia Constitution, instead of the U.S. Constitution.
“Georgia has the longest standing right to privacy of any jurisdiction in the United States and it’s basically the premise that you have the right to not be invaded by the state or by others without good reason, that you should have the ability to make decisions that you want as long as you’re not harming others,” Kreis said. “We have to ask ourselves: when this provision first was introduced into the Georgia Constitution and ratified, what did the average Georgian mean by liberty and how that understanding of liberty applies to the context of reproductive health care, and this is where it gets interesting,” he said.