Not only did access to abortion in Georgia become vastly limited when the 11th U.S. Circuit Court of Appeals allowed the state’s restrictive abortion law to take effect this week, the ruling also opened up an array of legal questions by granting rights to embryos.
In addition to banning most abortions after a doctor can detect fetal cardiac activity, Georgia’s law also provides “personhood” status to the embryo — a change that has implications for state tax policy, population counts and even court orders. The new law went into effect Wednesday.
“Science, law and common sense tell us that unborn children are members of the human community,” said state House Science and Technology Chairman Ed Setzler, R-Acworth, who sponsored the abortion bill. “When you look at a child that’s six, eight, nine, 10 weeks along inside their mom in a 4D ultrasound, then put it on a big-screen TV and ask a roomful of first-graders ‘what are you looking at?’ They’re going to say ‘that’s a baby.’ ”
Three years after the law was passed, many state agencies still don’t have all the guidelines and procedures in place needed to implement the granting of rights to embryos.
Gov. Brian Kemp signed Georgia’s abortion law in 2019, but the courts blocked it until this week. Georgia’s law allows later abortions when the life of the mother is at risk, the fetus would not survive after birth, or if the pregnancy is the result of rape or incest. To terminate a pregnancy that was conceived in the instance of rape or incest, the victim has to file a police report.
State agencies aren’t ready to fully implement the law despite the fact that there have been signs for months that the ban on Georgia’s statute would likely be lifted this year.
Activists on both sides of the abortion debate began speculating in December that the U.S. Supreme Court would overturn Roe v. Wade, the nearly 50-year-old decision that guaranteed a constitutional right to an abortion, after analyzing oral arguments made about an abortion law in Mississippi.
A draft copy of the Supreme Court opinion overturning Roe was leaked in May, setting the stage for the inevitable final decision in Dobbs v. Jackson Women’s Health Organization that was made in late June. On Wednesday, the 11th U.S. Circuit Court of Appeals issued its order, allowing Georgia’s law to take effect.
Katie Byrd, a spokesperson for the governor, said Georgia’s state agencies are working to implement the new law.
“Just as agencies have done in the past when we passed bills to expand pregnancy and parental resources, and improve our adoption system, the state of Georgia is ready and actively working on the full implementation of Georgia’s (new abortion law),” Byrd said in a statement. “Respective and appropriate state agencies will provide information or communications as warranted and available.”
Still, several state agencies contacted by The Atlanta Journal-Constitution this week either could not provide specifics for how they will implement the new “personhood” provisions or did not respond to a request for comment. Agencies responded similarly when contacted by the AJC in 2019.
Georgia’s new law allows parents to claim an embryo, once a heartbeat is detected, on their state taxes as a dependent and require state officials to count an unborn child toward Georgia’s population in census counts. It also expands the definition of “natural person” to “any human being including an unborn child.”
The new law directs a handful of state agencies to implement the “personhood” provisions of the law. For example, the Department of Revenue is tasked with creating the filing process for parents wishing to claim an embryo or fetus on their taxes.
“The department has been actively monitoring this legislation and is refining guidance in light of (Wednesday’s) judicial decision,” Revenue Department spokesman Mason Rainey said. “We will be releasing more information as soon as possible.”
The Department of Public Health was instructed to update the state’s mandated script of information given to those seeking an abortion to include language that says “as early as six weeks’ gestation, an unborn child may have a detectable human heartbeat.” Obstetricians have said that early in pregnancy, what is seen is actually cells that will eventually develop into a heart shooting out electrical signals and fluttering or twitching.
A DPH spokeswoman said the updated language is being reviewed and will be available on the website “soon,” with printed copies being shipped to abortion providers in two to three weeks.
Several hypothetical questions have been posed concerning the idea of “personhood,” ranging from the legality of a pregnant woman riding in one of Georgia’s high-occupancy vehicle lanes to whether the embryo of someone illegally in the U.S. has American citizenship rights.
“By conferring the full rights of a person to an embryo at six weeks is not only inconsistent with what the law has been since Roe, but it’s like a completely different beast,” said Anthony Michael Kreis, a Georgia State University law professor specializing in constitutional law.
The answers aren’t straightforward, legal experts say.
“This is new territory,” said Fred Smith, a constitutional law professor at the Emory University School of Law. “The Supreme Court, in Dobbs, didn’t say anything about personhood. ... This is different. It raises all sorts of other questions and, in fact, it undermines the fetal cardiac activity portion of the law.”
Under the law, a provider who performs an abortion after fetal cardiac activity has been detected would be guilty of criminal abortion and could face between one and 10 years in prison and lose their license to practice. But opponents of the new law say that if an embryo is a person, prosecutors could charge providers with murder at any stage of pregnancy.
“If it is true that from the moment of conception one is a person, then it raises questions around homicide, and that’s kind of inconsistent with the exemptions that apply to one part of the bill,” Smith said.
The bill’s author, Setzler, who is an engineer, says a legal argument called the “rule of lenity” requires courts to pursue the charge that is the most favorable to a defendant.
“There’s all kinds of theories of law in which things can be charged, but convictions will only come through the criminal abortion statute if there’s in fact facts to substantiate it,” he said.
The new law will likely require legal experts to look at each mention of “natural person” or “human being” in Georgia code to see what the implications might be. A search for “natural person” in the annotated Georgia code online showed the term is mentioned 136 times in various statutes and legislation.
“(The new law) applies not just in the abortion context, but across Georgia code,” Setzler said. “Moms who are pregnant can now get child support from dads for all pregnancy-related expenses. Families who are expecting (a child) have a dependent minor when they file their income taxes. Moms who are driving in the HOV lane, they get to ride in the HOV lane because there’s two human beings in the car. There’s a recognition of that.
“We’re looking at this more broadly than just the abortion context. We’re recognizing the humanity of the unborn child because it’s what science, law and common sense tells us.”
The HOV lane scenario is playing out in Texas, which changed its law to define an embryo or fetus as a “person” in its state code. A woman there is challenging a ticket she received for driving in the HOV lane, saying since she is pregnant, under that state’s law, there were two people in the car.
Georgia code says “passenger vehicles occupied by two persons or more” can use HOV lanes and defines person as “any individual, partnership, corporation, association, or private organization of any character.”
The way the Department of Public Safety interprets state code is more specific, saying on its website that “vehicles with two or more (living and not pre-infant) persons” can use the lanes.
The DPS did not respond to a request for comment about the new law.
It remains to be seen what the implications of granting rights to an embryo upon conception will have on Georgia’s laws.
“The collateral consequences for redefining who a person is — it’s so broad, so sweeping and touches every part of Georgia law,” Kreis said. “I don’t think anybody can reasonably say how it’s going to shake out.”
State Rep. Mary Margaret Oliver, a Decatur Democrat and an attorney, said the focus on figuring out the implications of “personhood” is a distraction from the fact that abortion access has been vastly limited.
”We are going to spend hours of law review-type discussions on what personhood means from a legal analysis, from an of analysis of faith and an analysis of pure politics,” she said. “None of this time is going to be really useful to the women of Georgia whose constitutional rights to privacy they’ve enjoyed for 49-plus years has been taken away.
“The chaos created by personhood definitions and the application of law is going to be an enormous distraction and painful waste of time, money and energy.”
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