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Prepared on July 27; Updated September 22, 2022

What does the recent 11th Circuit Court decision mean for Abortion law in Georgia?

Until July 20, abortion was legal in Georgia up to 20 weeks and clinics were open and providing care. However, the 11th Circuit Court of Appeals issued a ruling mid-afternoon which ordered Georgia’s six-week abortion ban (HB 481) to immediately take effect even though typically, such court rulings have a 28-day period before taking effect.

 

Health care providers were forced to scramble as they adjusted to a shortened window for legal abortions. Immediate confusion ensued and many questions remain unanswered.

The 2019 “LIFE ACT,” the official title for HB 481, is now Georgia law. This legislation bans most abortions after six weeks when, according to the language of the bill, “fetal cardiac activity is detected.” Factually, a heart is not formed so early in the fetal development process and the rhythmic pounding sound detected by an ultrasound machine is merely electrical cellular activity. Further, at this point in a pregnancy, many do not even realize they are pregnant.

 

The federal court ruling also upholds the personhood provision, unique to the Georgia law, which declares life begins at fertilization. This provision allows parents to claim “in utero” offspring as dependent minors to be counted on taxes, in the census and for child support purposes. While debated in other states, Georgia’s bill is the first personhood law to go into effect in the United States. The many ramifications of this “personhood” decision are still open to determination because state agencies did not have regulations in place – for example at the Department of Revenue where provisions of the income tax code must be revised.

 

Those seeking abortion care in Georgia now must undergo a mandatory 24-hour waiting period.  The Georgia statute also limits public funding and private insurance coverage of abortion.

Are there exceptions in HB 481 Law?

Georgia’s HB 481 allows for narrow exceptions to the six-week abortion ban: in the case of incest or rape, provided the patient has filed a police report, or when a woman’s life is in danger.  In truth, police reports are not filed for 65 percent of sexual assault cases. Further, the “health of the mother’ specifically excludes the mental health of the mother.

 

As abortion bans went into effect in other states following the SCOTUS ruling during the summer of 2022, many cases came to the attention of the media shining a spotlight on just how dramatically abortion bans are impacting the full range of reproductive health care offered to those who are pregnant and experiencing complications. Doctors are reluctant to order certain procedures which they believe are medically necessary for fear of prosecution. Further, many of child-bearing age diagnosed with chronic auto-immune conditions are being told long-standing prescriptions for specific medicines will no longer be filled because those same drugs can be used to induce a medical abortion.

Are Georgia Clinics Still Open?

Planned Parenthood Southeast has announced four clinics in Georgia will continue to provide medication abortion, but only up until six weeks. The Feminist Women’s Health Center in Atlanta will continue to offer abortion services before fetal cardiac activity is detected and care in some emergency cases, stressing on social media that “early abortion care is still legal in Georgia.”

The new law’s compressed timeframe for abortion care means it is now important to take a pregnancy test as early as possible, said Lauren Frazier, Planned Parenthood Southeast’s communications director. “The earliest a person can test for pregnancy is from the first day of a missed period. This means you’re already 4 weeks out with only 2 weeks left to figure out that you’re pregnant, make a decision, and get an appointment scheduled with an abortion provider. After that, your choices are to remain pregnant or leave the state to get care,” Frazier said.

What do Georgia women who wish to terminate a pregnancy beyond six weeks do now?

Travel to a state which still legally offers abortion is the medically safest option. The two adjoining states with greatest access to abortion are Florida, where abortion is available up to 15 weeks, and North Carolina, where abortion is legal until “viability” – usually between 24 and 26 weeks.

A resource for tracking laws in specific states is: abortionfinder.org. This website also offers helpful resources for those with questions about abortion procedures.

How receiving abortion care or medication in another state will be handled under the new Georgia law is unclear. However, District Attorneys in Athens-Clarke County, Augusta Judicial Circuit, Chatham County, DeKalb County, Douglas County and the Gwinnett Judicial Circuit have announced they will not prosecute abortion cases brought under the new Georgia law. The article at this link provides a map and more information.

Are we “stuck” with HB 481?

The law stands for the moment. The speediest opportunity for overturning the law is a state-based court challenge which would “stay” the law while court challenges are heard. The Georgia General Assembly is not currently scheduled to re-convene until January and AFTER the November election.

There are three ways to change the law:

  • A judicial challenge at the state court level so that constitutionality is challenged based on tenants of state law. This is necessary because The Supreme Court of the United States (SCOTUS) has declared the issue is best determined at the state level. A challenge was filed by the ACLU working with a consortium of groups providing abortion services was filed on July 26. Read more herelink to separate document on the court challenge.
  • Repeal of the law by a new more pro-choice General Assembly
  • Alteration of the most egregious portions of the law with legislation passed by a new General Assembly.

What roles do statewide office holders play when it comes to protecting reproductive freedom?

As Governor, Stacey Abrams would have the power to veto any Republican passed restrictions to reproductive freedom and to craft future compromises more favorable than the existing law. She has pledged to work to repeal HB 481.

A Secretary of State, Bee Nguyen would be responsible for overseeing all future elections which places her at the center of protecting access to the polling place and administering a free and fair election process.

As Attorney General, Jen Jordan has pledged not to use taxpayer money to defend HB 481 because she believes the law is unconstitutional. She has long been an effective advocate for reproductive freedom and her emotional speech to oppose HB 481 in 2019 immediately captured national and international attention. LINK to Jen video

What do you mean by a more pro-choice Georgia General Assembly?

HB 481 passed by the narrowest possible margin in 2019. Georgia WIN List candidates FLIPped three House seats and one Senate seat from red to Blue in 2020. For 2022, WIN List has endorsed a total of 59 candidates, including four Senators with no opposition and seven Senators who have either primary or General Election opposition. In the House, 10 members face no opposition and WIN List has endorsed 16 members facing November opposition.

However, most importantly, eight pro-choice candidates who are running against House Republicans who voted for HB 481, three candidates running against incumbents elected in 2020 for districts where the previous legislator had voted for HB 481 and six women running in open seats which could shift to Democratic control.

Building a stronger pro-choice coalition gives Democrats the votes to repeal HB 481 and fend off future Georgia GOP attempts to pass further restrictions on abortion and contraception, which also seems to be a goal for the most extreme Republicans.

What does the “personhood” language in HB 481 mean?

“The personhood language in the law will likely have broad and far-reaching impacts on Georgia’s state code – the extent of which will take time to understand,” Anthony Michael Kreis, a constitutional law professor at Georgia State University, has said. Kreis also said he believes the court ruling correctly rejected a challenge that the personhood provision was unconstitutionally vague.

“It’s an incredibly sweeping new definition,” Kreis said soon after the decision was released. “And, by altering every civil and criminal law in Georgia to redefine person in this way is a drastic departure from the status quo. But, just because it’s a major shift doesn’t necessarily mean it’s vague, and I think people are disconcerted by such a massive amount of change, and understandably so. To me, that’s not a vagueness problem – it’s a policy problem.”

Kreis argues there are many open questions, including whether a woman could be investigated for a miscarriage, whether a pregnant woman with an eating disorder is committing child abuse – and if the state should be alerted under mandatory reporting rules – and whether a wrongful death action could be pursued against a Georgian who travels out of state for an abortion.

Also, would a woman who is eight weeks along who acquires abortion medication in another state be committing murder if she takes the drugs back on Georgia soil? “Those are the kinds of things we will only find out over time through prosecutions and litigation,” Kreis said. “To me, none of those questions are vague. The answer is ‘yes’ to all of those things.”

Are there long-term consequences for being denied an abortion?

Absolutely!! Experts say many women are already experiencing economic hardships when they seek an abortion because not having enough money to care for a child or another child is the most common reason for seeking an abortion. A study which tracked a group of almost 1,000 women for years – some who had abortions and some who were turned away – revealed dramatic long-term consequences. Those denied abortion ended up 3 times more likely to be unemployed and 4 times more likely to be living below the Federal Poverty Level than those who received abortion care. Because the responsibility of raising a child born after being denied an abortion falls disproportionately on women, restricting abortion access threatens women’s economic security. TANF, SNAP, WIC, and Medicaid play an important role in supporting women and their families, but they are not sufficient to keep women from falling below the Federal Poverty Level.

Quick Click Resources:

 

Frequently Asked Questions about the July 25 Court Challenge to HB 481:

What is the goal of the lawsuit?

While attorneys sought an immediate injunction against enforcement of the the law while the case makes its way through the legal system, the court has ruled against this request.

Which Judge hears the case?

Fulton County Superior Judge Robert McBurney has been assigned to the case. He attended Harvard for both his undergraduate and law school degrees.

Judicial Assignments

  • 2012 – present: Superior Court of Fulton County

Education

  • J.D., Harvard Law School (1995)
  • A.B., Harvard College (1990)

Professional Experience/Associations

  • Assistant United States Attorney, Northern District of Georgia
  • Assistant District Attorney, Fulton County

 

Why the emphasis on privacy?

Privacy concerns were also at the heart of the federal Roe v Wade case. Even though the SCOTUS opinion in the Dobbs case declares there is no federal protection for privacy, states often grant their own residents more rights than those enumerated in the U.S. Constitution.

 

Remarkably, Georgia’s strong case law protecting privacy is more than a century old via a 1905 Georgia Supreme Court case, Pavesich v New England Mutual Life Insurance. The case arose after the company used a photo of Paolo Pavesich without his permission to promote life insurance policies. It became one of the first explicit endorsements of the right to privacy in the United States and was subsequently cited in more than 200 United States legal cases, including four SCOTUS cases.

 

Many legal experts predict Georgia’s courts will not necessarily follow the lead of the United States Supreme Court given this firm state legal precedent. Atlanta Attorney Steve Saddow used the Pavesich case to persuade the Georgia Supreme Court to strike down the state’s anti-sodomy law in 1998. “There are direct parallels,” he says. “Both deal with personal privacy.”