With Roe vs. Wade a thing of the past and Georgia expected to enact its 2019 Fetal Personality Act any day, women seeking an abortion will be breaking new legal ground.
The law expands the notion of personality to recognize an unborn child as a human being after about six weeks of pregnancy, meaning fathers could be responsible for child support before their children draw their first breath, families could use their unborn offspring as dependents for state taxes count, and pregnant women could potentially get out of speeding tickets if they appear to be driving alone in an HOV lane.
Are women prosecuted?
As a result, it poses risks for women who want to terminate their pregnancy and for those who help them to do so. Abortion rights advocates express concern that abortion patients could face murder charges and those who assist them face conspiracy charges.
“Specifically regarding the inclusion of the language of the person, if you think about it from that perspective, if you took another human, an adult, across state lines and killed that person and then came back, the state of Georgia could prosecute you.” be prosecuted in Georgia? Yes, yes you could,” said Senator Jen Jordan of Atlanta. “So it’s one of those things that the nature of the unintended consequences of that is incredible, just in terms of legal interpretation and application.”
Jordan, an attorney and Democratic nominee for attorney general, spoke out in the state Senate against the abortion law and vowed not to defend it if she is elected.
Some local prosecutors have pledged not to enforce the law, including seven from across Georgia who signed a June 24 open letter.
“Not all of us agree on the issue of abortion on a personal or moral level,” prosecutors wrote. “But we stand together in our firm belief that prosecutors have a responsibility not to use limited resources of the criminal justice system to criminalize personal medical decisions. Therefore, we refuse to use our offices’ resources to criminalize reproductive health decisions and commit to exercising our discretion and refraining from prosecuting those who seek, perform or assist in abortion.”
Other senior prosecutors, including Cherokee County District Attorney Shannon Wallace, told the recorder they will not ignore the new law.
“As District Attorney for the Blue Ridge Judicial Circuit, I believe it is my legal duty to enforce the duly enacted statutes of our General Assembly by seeing prosecutable those who violate those statutes,” she said in an email. “When/if Georgia’s Abortion Law comes into force, my office will treat violations of OCGA 16-12-140 (criminal abortion) in the same way as any other criminal code violations prosecuted in this county. We will review charges brought by law enforcement on a case-by-case basis and prosecute those where there is sufficient evidence to show a violation of the law.”
Renitta Shannon, representative of the Democratic state of Decatur, told a U.S. House committee on Wednesday that she fears law enforcement could disproportionately target women of minority ethnic backgrounds who miscarry.
“What a lot of people don’t know is that a lot of the same drugs that are used for miscarriages are also used for medical abortions, which are usually performed at home, and there’s really no way of telling if someone has miscarried or if someone had an abortion,” she said. “What we do know is that our criminal justice system is really good at incarcerating black people and brown people and so I’m really concerned that if a person has a miscarriage and is being questioned by law enforcement or being prosecuted for that, I’m very concerned our criminal justice system will likely believe Karen, but will not believe Keisha when she says she miscarried.”
legal protection
Even under the new law, women should not be prosecuted for terminating their own pregnancy, said Farah Diaz-Tello, senior counsel and legal director at If/When/How, a reproductive justice organization that provides free legal aid to those who do offers to have the questions the law.
“In Georgia, despite having a fetal personality provision, there is no statutory provision that would clearly allow people to be prosecuted for having an abortion or terminating their own pregnancy, and this is a long-standing precedent,” she said. “There are appellate decisions in Georgia that state abortion statutes and other laws cannot be used to charge a person with a crime because they terminated their own pregnancy. And the legal provisions on which these decisions are based will not be changed by the possible change in Georgian law.”
GET THE TOMORROW HEADLINES IN YOUR INBOX
SUBSCRIBE TO
But that hardly means women can perform their own abortions without legal scrutiny, she added.
She cited as an example the 2015 case of Albany resident Kenlissa Jones, who was arrested for malicious murder after taking abortion pills and suffering a miscarriage. The Dougherty County District Attorney dropped the case after finding that Georgia law does not allow a pregnant woman to be prosecuted for acts against her own unborn child.
Jones was released, but only after he was arrested and questioned while suffering from an obstetric emergency, Diaz-Tello said.
“Asking whether someone is a direct target of the law — Georgian law will not make people a direct target — is not the same as asking whether they are ultimately collateral damage to state lawmakers trying to restrict abortion,” he said you. “So I think the takeaway from the situation that Miss Jones faced in 2015 is not that people are safe, it’s that it makes people more likely to face that kind of criminal investigation and even prosecution . ”
Diaz-Tello said she fears situations where a prosecutor doesn’t change course or persuades the woman to plead guilty in exchange for a lighter sentence.
workarounds
More than half of abortions in the US are performed by taking a series of pills rather than surgery. The pills were approved in 2000, and the FDA recently issued a rule allowing them to be mailed, although in practice access depends on where you live.
A bill that would limit access to abortion pills has passed the Georgia Senate but failed to win House approval this year.
Those pills will still be available after the law changes, said Elissa Wells, co-founder and co-director of Plan C, a group that publishes information about how people in different states can get abortion pills.
Plan C for Georgia’s website lists telemedicine options currently available for Georgians seeking abortions, but Wells said she expects to contact those providers once the law changes to confirm their availability to reevaluate.
“Even with this law, there will still be opportunities in Georgia to get an abortion through the mail,” she said. “They are medically safe and, in fact, are often supported by doctors. But every time you leave the normal avenue of access, whether you’ve done something wrong or not, there’s a chance of criminalization.”
Some people in other states with restrictive laws access abortion pills through mail forwarding services, she said.
In some cases, women get into the legal system after seeking medical help following a medical abortion, typically after self-reporting that they took abortion pills, Wells said.
If one of the pills hasn’t completely dissolved, there’s no way for a doctor to know, she added.
“There is no way a doctor can tell, and there is no need to tell the doctor that you have done this in order to receive the right treatment, because it is exactly the same treatment that you would receive if you were to present with a miscarriage,” she said. “We’re trying to make that information understandable to people.”
Wells said she recommends people in restrictive states consider their digital safety before looking at the site. She said she was concerned that Plan C could be accused of violating a state law, the rules of which are constantly changing.
“But at the same time, these laws are illegitimate, they’re racist, they’re sexist, they’re classist, and we have to stand up to these legislators who are making these unjust laws and putting people in this scary situation of what primary healthcare should be,” she said “So we will insist on getting the word out and helping normalize this very safe and very effective form of abortion.”
She said she’s encouraged by prosecutors cracking down on the law, but wasn’t optimistic about their ability to prevent harm.
“It’s so hard to know how it’s going to play out in practice,” she said. “There could be renegade prosecutors who realize that getting other people’s businesses and going after them is their business. I’ve also heard calls from anti-choice people saying “enforce the law, it’s your job to enforce the law”. How that will turn out is written in the stars.”
