On Monday, Georgia Republican Gov. Brian Kemp signed HB 481, the most extreme abortion ban in the country. In addition to criminalizing abortion after about six weeks, the law threatens to imprison women who terminate their pregnancies. It also grants full legal personhood to fetuses, ensuring that anyone who terminates a pregnancy after six weeks—including a pregnant woman herself—may be liable for murder. Women who miscarry may be investigated and charged if prosecutors believe they are responsible for “the death of an unborn child.”
Democratic Sen. Jen Jordan, an attorney and fierce opponent of the bill in the state Senate, has warned Georgians about the dramatic consequences of HB 481. On Friday, we spoke about the dire ramifications of the law, as well as the effort to block it before it takes effect in 2020. Our conversation has been edited and condensed for clarity.
Mark Joseph Stern: You’ve pointed out that HB 481 expands the legal definition of abortion to encompass actions a woman takes to terminate her own pregnancy, not only acts performed on her by another. Do you think the bill subjects women to prosecution if they self-terminate?
Jen Jordan: Yes. If there was any doubt in terms of opening up women to prosecution, all you have to do is look at the affirmative defense added to the bill.
Right. The law allows women who are prosecuted for undergoing an abortion to argue in court that they “reasonably believed that an abortion was the only way to prevent a medical emergency.” It obviously foresees women being prosecuted.
It’s Criminal Law 101 that you don’t need an affirmative defense from criminal prosecution if there is no intent to criminally prosecute someone. The inclusion of that affirmative defense is the clearest intent that we have that this was exactly what the Republicans are trying to do.
Under HB 481, could prosecutors charge a woman who miscarries?
Yes. In a 1998 case, Hillman v. State, prosecutors charged an 18-year-old girl who was eight months pregnant and shot herself in the stomach. She was indicted for trying to “produce a miscarriage.” But the court said, look, we’re not in the business of criminally prosecuting women when it comes to self-termination because it’s bad public policy. The court itself listed a long line of things that could happen if it did. [Note: The court explained that pregnant women who miscarry after smoking, drinking, or failing “to secure adequate prenatal medical care” could be “at risk of a criminal indictment.”]
Hillman interpreted the statute as it existed in 1998. Now all of these things the court talked about—the reasons why it’s bad public policy to charge women who miscarry—could happen under HB 481. It opens the door to prosecution of women who miscarry. We knew this was bad policy in 1998. We’re going backward.
Some proponents of HB 481 say prosecutors won’t charge women who self-terminate. But at least one Georgia prosecutor already tried under the old legal regime, and the new law seems to give motivated prosecutors a way to make those charges stick.
The bill allows massive prosecutorial discretion. There are prosecutors in the state who do incredible work every day. But there are also prosecutors in this state who are incredibly political. In a state where many district attorneys run as partisans, you can imagine a situation where a prosecutor would try to do exactly what we saw in Hillman v. State. This law just gives so much discretion to prosecutors, and that’s incredibly dangerous. It opens the door to disparate enforcement against racial minorities, too. There’s so much bad there. That’s why it’s so important that this law never go into effect.
An equally alarming provision of the bill grants legal personhood to fetuses, granting them full rights under Georgia law. That means women who self-terminate could be prosecuted for murder.
The personhood thing—that’s the hook for all of it. Because once someone is a person in the state of Georgia, they are entitled to all the protection of all the laws of Georgia. Not just the statutes that govern abortions, but all of them. So we can look at the abortion statutes, but really it’s the personhood thing that changes everything.
Do you think a majority of legislators who supported HB 481 realized that they were subjecting women who self-terminate to murder charges and all these grave consequences?
No. This has been a problem across the board up at the General Assembly. Everybody thinks that the majority of people up there are lawyers, and that’s not true. We don’t even have enough lawyers to fill the Judiciary Committee in the Senate. That’s problematic. To really understand HB 481, you needed to look at the entire statutory regime. It references back to different statutes. It’s almost like a puzzle you have to put together. If you’re not a lawyer, you don’t know how to do that. If you don’t know how to do it, you rely on the team mentality. “The Republican leadership and the governor say that this is what we have to do as Republicans and this is going to save lives.” There’s no independent research. Republican legislators rely on folks telling them this is great, there’s no problem, we need to vote for it. But if you do a deep dive and see what the implications are, I can’t see how any rational person would think that this is a good idea.
The weird consequences certainly go beyond punishing women.
It’s fantastical. What about women pregnant in prison? Now you’ve got a baby that hasn’t been given due process and is in prison? It sounds ridiculous because it’s ridiculous. If you see a pregnant woman eating sushi, do you call the Division of Family and Children Services and make a complaint? It’s that kind of stuff. If you’re pregnant, you’re driving in the HOV lane, and an officer pulls you over, do you say, “Don’t worry, officer—me and my zygote, we’re good.” The Office of Legislative Counsel told us that if an undocumented immigrant in the state is pregnant, that fetus is considered a Georgia resident, a citizen, and a person entitled to all the aid and health care a Georgia resident is entitled to. But the mother herself couldn’t get any benefits.
This law is so irrational. It just doesn’t make sense because it’s so absurd. When I first read it, it was like, Come on. No way. This isn’t happening. There are so many problems with this. But now it’s the law, so we need to tell people and educate women in terms of what could happen.
HB 481 is set to take effect on Jan. 1, 2020. Why the delay? And do you think it’ll ever actually go into effect?
The law can’t take effect until January because it categorizes fetuses as “minor dependents” under the Internal Revenue Code. And any time we create tax exemptions or deductions in Georgia, they have to start on Jan. 1. That actually helps us—it puts off the effective date and gives all the people fighting against this law the time to craft the best legal arguments to make sure it gets stopped immediately in the courts. We also need to make sure this gets repealed. We need a legal approach and an electoral approach.
Do you think a majority of Georgians support the law?
A majority of Georgians don’t know what’s in it. When you ask a general question in terms of abortion restrictions, a lot of people are in favor of them, if they’re constitutional. But when you actually start to drill down in terms of what this law does, people are appalled. Republican women know this just goes way too far. But we really need to get the word out. People need to understand exactly what their elected officials are doing under the gold dome. This goes way further than any constitutional abortion restrictions the courts would ever allow.
I don’t want to scare people or be alarmist. I think legally, this bill is DOA. Hell yes, it’s scary, but it’s also absurd and idiotic.
