People fill the hallways outside of committee Room 450 in the state Capitol, at a first Senate hearing for HB 481, the anti-abortion “heartbeat” bill. JASON GETZ/SPECIAL TO THE AJC
Photo: Jason Getz
Photo: Jason Getz

The logic, and illogic, of a ‘heartbeat’ bill to ban abortions

There is a certain logic to the “heartbeat” bill now before the state Senate, one that even ferocious opponents can recognize.

Proponents of House Bill 481 contend that life begins once an embryo’s heartbeat can be detected — at about six weeks, when it is about the size of one’s fingernail. And before most women even realize they’re pregnant.

Except there is no embryo or fetus in the “heartbeat” bill. There is only the “unborn child,” who would receive “full legal recognition” under Georgia law as “a natural person.”

Some consequences have been considered, though not all. Under HB 481, parents would be able to consider the unborn as dependents, and thus deductible when figuring out how much state income tax they owe.

Fathers, to a limited extent, would have to pony up child support, beginning six weeks after conception. State censuses, though not federal ones, would include womb counts.

The 14th Amendment to the U.S. Constitution established birthright citizenship in the United States. HB 481 is silent on whether conception or six weeks in utero might confer citizenship, at least on a state level.

Make no mistake about it. HB 481 would all but eliminate a woman’s access to abortion in Georgia — as intended. Exceptions would include cases of rape or incest, but both would have to be backed up by police reports in which those crimes are formally alleged. Which would appear to rule out most cases of incest.

A “medical emergency” involving the life of the mother or “the impairment of a major bodily function” would be another exception. Yet a woman’s mental or emotional state would not be considered to constitute an emergency. Neither would her threats of suicide.

Much of the above follows from the assumption that a six-week-old embryo is a full-fledged human being. But legislation is thinking by committee, and so the logic does not always hold together.

Take the topic of enforcement — always a sensitive issue in anti-abortion legislation. For the most part, HB 481 appears to rely on self-policing, by weaponizing civil lawsuits. Thus, the bill has made an enemy out of the Medical Association of Georgia, the most influential physicians’ group in the state.

Under HB 481, any woman who undergoes an abortion would be free to file a civil suit against the abortion provider — for the value of the life of a child whose life began at six weeks.

“HB 481 both criminalizes physicians and creates a private right of action against physicians when physicians care for their patients within their scope of practice,” complained Dr. Rutledge Forney, president of MAG, in a letter addressed to state Sen. Renee Unterman, R-Buford. A former nurse, Unterman chaired the committee that gave initial Senate approval to HB 481 on Monday.

The bill could reach the Senate floor as early as Friday.

Forney warned that the bill “could undermine efforts to recruit and retain OB-GYN in Georgia, and could further restrict access to health care in rural Georgia.” Half of Georgia’s 159 counties have no obstetrician/gynecologist.

Even so, the civil suit avenue in HB 481 is consistent with Georgia’s approach to abortion in criminal law. It is also where anti-abortion logic traditionally falls apart. Opponents may say they consider abortion to be murder, but the pregnant women who seek abortions have been considered innocent of the crime.

That may be a highly patriarchal attitude, backed up by case law, but it is also a politically necessary one. It is a line that abortion foes have not dared cross.

But there are those who think that HB 481, as altered by the Senate Science and Technology Committee on Monday, might contain a shift in that line of reasoning, intended or otherwise.

Amy Steigerwalt is a professor of political science at Georgia State University. She has a law school background as well.

Steigerwalt noted that, in the Senate version of HB 481, a series of exceptions has been added. She focused on the last one: “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.”

This infers that a woman who wasn’t experiencing a medical emergency could be held culpable in an abortion, said Steigerwalt. She then noted that, at the top of the bill, abortion is defined as “the act of using…any…substance…with the purpose to terminate a pregnancy.” (You can find the complete sentence on Line 88.)

“It looks as though, if I’m reading this correctly, that a woman would in fact be held criminal if she were to go get the pills for a medication abortion and utilize them,” Steigerwalt said. “She would be using a substance.”

The author of HB 481, state Rep. Ed Setzler, R-Acworth, disagreed with Steigerwalt’s interpretation. “There is nothing in this bill that would subject women to criminal prosecution,” said Setzler. The added language was intended as “additional protection” and tracks with phrasing used to attack sex trafficking, he said.

The changed wording originated not with Setzler, but Gov. Brian Kemp’s office. Candice Broce, the governor’s director of communications and deputy executive counsel, sent us a statement that includes this: “Professor Steigerwalt’s interpretation of existing Georgia law and HB 481 is incorrect. This legislation demonstrates that we value life in Georgia, and we will always fight to protect the rights of the innocent.”

I am not a lawyer. I do not play one on TV. Whether it comes Friday or not, the GOP-controlled Senate will likely approve the “heartbeat” bill. Differences with the House will be worked out, and Governor Kemp will be given something to sign.

And then a judge will have to decide what’s really in the bill.

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About the Author

Jim Galloway
Jim Galloway
Jim Galloway is a three-decade veteran of The Atlanta Journal-Constitution who writes the Political Insider blog and column.
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