Jurisprudence

Why Are Activists on Both Sides Rejecting the Reality of Georgia’s Horrific New Abortion Ban?

A protest of Georgia’s anti-abortion “heartbeat” bill takes place at the State Capitol.
A protest of Georgia’s anti-abortion “heartbeat” bill takes place at the State Capitol in Atlanta on May 7.
Reuters/Elijah Nouvelage

Last week, Georgia passed the nation’s most extreme attack on Roe v. Wade, prohibiting abortion after six weeks and granting full legal personhood to fetuses. It is currently set to take effect in 2020. After Republican Gov. Brian Kemp signed the law, HB 481, I explained how it would allow prosecutors to file criminal charges against women who get abortions and even target women who miscarry. A number of prominent figures in politics and law, including Democratic presidential candidates Sens. Kamala Harris and Cory Booker, also described the dangers of this bill, with Harris correctly calling it “a blatant attempt to criminalize a woman’s constitutionally protected right to make her own health care decision” that would “threaten women with years of jail time.” But others on both sides of the partisan spectrum have suggested that this characterization was alarmist and incorrect.

As a technical matter, these criticisms are wrong: The law as written would do exactly what Harris and I described. Those who claim otherwise have either not read and understood the bill’s language or have other motivations for downplaying what this law would do if the courts don’t strike it down first—which is the likely, but not inevitable, outcome.

Journalists, though, should resist the temptation to uncritically adopt the narrative, pushed by both sides of this debate, that this bill can’t possibly be as horrific as it sounds. As Georgia state Sen. Jen Jordan, an attorney and a Democratic opponent of the bill, told me on Friday, HB 481 is “like a puzzle you have to put together” by looking “at the entire statutory regime.” Journalists, scholars, and advocates on both sides cannot rely on the truisms and talking points that dominated the abortion debate for decades. HB 481 is a new and dangerous weapon, and it requires willful naïveté to believe that it won’t be used against women.

The bill’s unprecedented nature has been dismissed by respectable publications for reasons that do not withstand scrutiny. On Saturday, Deanna Paul and Emily Wax-Thibodeaux published a Washington Post article describing my article as “incorrect.” Paul and Wax-Thibodeaux’s piece is an excellent example of the muddled and credulous reporting over HB 481, and it is worth correcting their erroneous claims to illustrate the extreme nature of the Georgia bill in comparison with earlier abortion restrictions.

At the start, it’s important to recognize that HB 481 is a radical departure from historical anti-abortion legislation. Before Roe, most laws regulating abortion penalized individuals who performed the procedure. Women were rarely prosecuted, but they were often threatened with imprisonment unless they testified against the provider who terminated their pregnancy.
Fetuses were not considered persons, so abortion was not charged as murder; discrete statutes in each state created specific penalties for those found guilty of performing abortions.

HB 481 is a different beast, in two major ways. First, the law explicitly expands the definition of abortion to encompass self-termination. Georgia’s earlier abortion law defined abortion as something that one person “administers … to” or performs “upon any woman.” It was, in other words, something that one person does to another. HB 481 redefines abortion to be “the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy.” That means abortion includes something one person does to herself. A woman who takes misoprostol to induce miscarriage is “administering” a “substance” to “terminate a pregnancy” and is therefore liable under the law. This change is significant because self-termination is increasingly common: Women can easily purchase misoprostol, a drug designed to treat stomach ulcers that also ends pregnancies, on the internet.

In case there were any doubt about the purpose of this revision, HB 481 includes a provision creating a defense for women who might be prosecuted under the law. “It shall be an affirmative defense to prosecution under this article if … [a] woman sought an abortion because she reasonably believed that an abortion was the only way to prevent a medical emergency,” it declares. To state what should be obvious, women charged for undergoing abortions would not need an affirmative defense to prosecution if they could not be prosecuted in the first place.

Paul and Wax-Thibodeaux do not explain why, exactly, they believe HB 481 immunizes women from prosecution. Instead, they cite Staci Fox, the CEO of Planned Parenthood Southeast, and Carol Sanger, a scholar and reproductive rights advocate, to assert that “HB 481 could not be used to successfully prosecute women.” (There is no legal analysis to support this conclusory statement.) Moreover, Paul and Wax-Thibodeaux defer to Sanger’s speculation that “if a woman had a miscarriage, she could be pulled into an investigation looking at whether someone performed an illegal abortion on her.” Sanger’s concern was true of the older generation of abortion restrictions. But it fundamentally misapprehends HB 481, overlooking its direct impact on women.

Writing in National Review, David French, meanwhile, mounts a better-informed argument that the Georgia bill would not be used to prosecute women, but his argument fails as well. French points out that in Hillman v. State, the Georgia courts interpreted the abortion law to bar the prosecution of women suspected of self-terminating. True—but Hillman involved the old law, which, again, criminalized the act of performing an abortion on someone else. HB 481 revises this definition to criminalize the act of self-termination too. Hillman can no longer be used to block the prosecution of women, because HB 481 supersedes it, redefining criminal abortion to encompass something a woman does to herself.

French next cites Georgia’s feticide statute, which imposes special penalties on any individual who causes the death of a fetus by injuring a woman. This law, he points out, states that “nothing in this Code section shall be construed to permit the prosecution of … [a]ny woman with respect to her unborn child.” French seems to believe that this immunity extends to any woman who ends her own pregnancy. But note the limiting language: “Nothing in this Code section” can be used to punish women “with respect to” her fetus. The law does not grant pregnant women immunity from prosecution under all circumstances; it grants immunity exclusively with regard to the feticide statute. Other sections of the code can still be used to prosecute women—like the newly enacted provisions of HB 481.

Now let’s turn to the broader consequences of the Georgia law. Fox told the Post that “news headlines … that speculate about the bills’ unintended consequences are—at the very least—not productive. At most, they’re harmful.” There is, however, a difference between “harmful” and “untrue.” And while Planned Parenthood has been in damage control mode since HB 481’s passage, downplaying the effects of the bill in an apparent effort to calm Georgians, that does not mean journalists should unquestioningly repeat the organization’s claims.

The most startling provision of HB 481 grants full legal personhood to fetuses after about six weeks of pregnancy. It states that fetuses must be afforded due process and equal protection, and notes that they “shall be included in population based determinations.” The Georgia Office and Legislative Counsel—the office that houses the state Legislature’s own lawyers—has already acknowledged some of the sweeping ramifications of this shift, writing that the fetuses of undocumented women may be entitled to state benefits that their mothers cannot legally use.

But there are other, more dire repercussions of granting personhood to fetuses: If fetuses are humans for the purposes of Georgia law, then abortion, including self-termination, is murder. A woman who plans and carries out the termination of her own fetus has “caused the death of another human being” in violation of Georgia’s murder statute. The penalty for this crime is life imprisonment or death. A woman who seeks out an illegal abortion from a provider may be party to a murder (penalty: life in prison); a woman who causes her own miscarriage from drinking or drugs may have committed second-degree murder (penalty: 10 to 30 years in prison); a woman who travels out of state to obtain a legal abortion may have engaged in a conspiracy to commit murder (penalty: 10 years in prison). Absolutely nothing in HB 481 clarifies that the killing of a human being does not constitute murder when that human is a fetus. To the contrary, the law erases the legal distinction between humans and fetuses.

The argument that no woman suspected of self-termination would ever be charged with murder seems to assume that no prosecutor would dare use the law this way. This trust is misplaced. In 2015, a Georgia prosecutor charged a woman with malice murder, which is punishable by life in prison or death, after she used black-market misoprostol to induce a miscarriage; he only dropped the charges after deciding that the law on the books did not support the prosecution. At the time, after all, a fetus wasn’t a human. Now a fetus will be a human under Georgia law. There is no legal reason why prosecutors cannot charge women who self-terminate with murder, exactly as one tried to do just a few years ago.

Finally, let’s turn to the Post article’s most astounding claim: that HB 481 cannot possibly take effect because Roe v. Wade remains good law and thus cannot be overturned. I happen to agree that the courts will likely block the bill, as does state Sen. Jordan. But it is absurd to say that the bill cannot take effect because the Supreme Court is not permitted to overturn Roe. And yet, that’s exactly what the Post incorrectly stated, writing, “According to a doctrine known as stare decisis, judges are bound by precedent. They cannot overturn a case simply because new justices have joined the court.” (The sentence was later changed without any noted correction). Ultimately, the belief that the Supreme Court “cannot overturn a case simply because new justices have joined the court” appears to lie at the core of the Post’s assertion that HB 481 is really no threat at all to women who self-terminate. (Paul and Wax-Thibodeaux might be surprised to learn that SCOTUS overturned a 40-year-old precedent on Monday simply because new justices have joined the court, as Justice Stephen Breyer noted in dissent.)

It’s important to ask: Why is the Post piece so riddled with errors? And why is Planned Parenthood taking the same view of HB 481 as David French, a fierce foe of abortion? The problem here seems to be that neither pro-choice or pro-life advocates want to recognize the potential repercussions of the bill, for very different reasons. Pro-life advocates recognize that the prosecution of women for abortion is public relations poison, and many earnestly wish to avoid that outcome. Pro-choice advocates like Planned Parenthood are contending with panicked, terrified patients, and seem to be seeking to soothe their fears.

But journalists should not bury their heads in the sand and parrot activists’ dubious claims. HB 481 is not a typical abortion ban. The bill marks an effort to overhaul Georgia’s legal regime to grant fetuses the same protections as regular humans. It is foolish to pretend that the extreme provisions of this legislation could not lead to extreme results. The Georgia bill means what it says. And what it says opens the door to prosecution and imprisonment of Georgians who dare exercise control over their reproductive rights.