Medical, legal community has unanswered questions on Ga. abortion law

Credit: Special

Credit: Special

Medical professionals and legal experts say they are in a state of uncertainty as Georgia’s new abortion law swiftly took effect this week.

The court’s decision was highly anticipated, but there are still many unanswered questions about how the restrictions on abortion will play out in practice. Doctors are paralyzed with confusion, said Dr. Cary Perry, the president of the Georgia Obstetrical and Gynecological Society.

“People are in a state of grayness. People don’t know how to make a move,” Perry said.

Under Georgia’s new law, most abortions are no longer allowed once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many women know they are pregnant. The law allows abortions in cases of rape, incest, if the life of the woman is in danger, or in instances of “medical futility,” when a fetus would not be able to survive.

The new law states that a procedure is not considered an abortion if it is performed to address a miscarriage, stillbirth or ectopic pregnancy. But Andrea Young, executive director of the American Civil Liberties Union of Georgia, which sued the state on behalf of abortion providers and other reproductive rights groups, said she is concerned that doctors will even avoid those legal procedures, because they are fearful of prosecution.

“Law abiding people who are highly trained professionals do not want to be accused of a crime. They do not even want to be accused of poor practice,” Young said. “Once you’re in the area of a judgment call, and you have a criminal statute that says ... [a doctor] can be prosecuted, it’s a chilling effect.”

Before Wednesday’s court ruling, Georgia allowed abortions up to 22 weeks into a pregnancy. The new law does not change the state’s criminal penalties that already existed for performing an illegal abortion: If a doctor is found to have illegally performed an abortion they potentially could face 1 to 10 years in prison.

Under existing Georgia law, doctors already report details of abortions to the Department of Public Health. Under the revised law, before they perform an abortion they must check for cardiac activity in the fetus, which is why it’s known as the “heartbeat” law. Any doctor who performs an abortion or attempts to perform an abortion must notify DPH that they checked for a heartbeat and whether they detected one.

If the procedure was performed after a heartbeat was detected, doctors must say whether the case involved a medical emergency, a pregnancy that could not be sustained or a pregnancy that resulted from rape or incest.

Katie Byrd, a spokesperson for the governor, said that Georgia’s state agencies will monitor the implementation of the new law.

“Just as agencies have done in the past when we passed bills to expand pregnancy and parental resources, extend health coverage to a full year for mothers after birth, improve our adoption system, reform foster care, and combat human trafficking, the State of Georgia is ready and actively working on the full implementation of Georgia’s LIFE Act,” Byrd said in a statement. “Respective and appropriate state agencies will provide information or communications as warranted and available.”

Chaos reigned at local abortion clinics this week as staff members canceled upcoming appointments for women seeking abortions. Some clinics vowed to stay open to perform fewer abortions still allowed under the new law, in addition to providing other reproductive health services.

Demand for abortions in Georgia surged in recent weeks, after the U.S. Supreme Court in late June overturned constitutional protections for the procedure. Ensuing “trigger” bans closed clinics in Alabama and Mississippi.

Abortion clinics in Georgia will now have to decide their futures — and how best to provide services to patients while not jeopardizing their licenses.

Perry said the law does not take into consideration the complicated decisions and factors that go into pregnancy care. She is concerned that if a person is miscarrying, but the fetus still has a heartbeat, that a doctor won’t be able to intervene, creating a potentially dangerous situation for the patient.

“Now if that person comes in with a heartbeat, what we are being told by what’s in this law is that we cannot intervene until there is no longer a heartbeat,” Perry said.

Several lawyers told the AJC that the law has broad and far reaching implications that seem to go beyond the criminal abortion statute and leaves many open questions unanswered. They described the Life Act as “destabilizing” and “chaotic”.

“This statute is, I don’t think it was well thought out. It was poorly worded and it lacks clear guidance to lawyers and medical providers,” said Amanda Clark Palmer, an attorney at Atlanta-based Garland, Samuel & Loeb.

Much of the ambiguity centers around the new law’s redefinition of personhood. The Life Act not only amends the criminal abortion law, but also redefines what a “person” is under state law, codifying that an unborn child is a “natural person” with rights even before birth. Using this logic, Palmer said, can a pregnant woman be charged with kidnapping for going over state lines to obtain an abortion? How is that going to impact other laws on the books, both criminal and civil, that rely on a definition of personhood?

Anthony Michael Kreis, a constitutional law professor at Georgia State University, said that it is on those in power in Georgia to fill in the blanks.

ExploreWhat does ‘personhood’ look like? Many Georgia agencies don’t know yet

The simplest option is for the Georgia Legislature to change the statute to provide more clarity, he said. State lawmakers could provide guidance on whether the new definition of personhood applies just to abortion laws or every other aspect of the state legal code. If the Legislature declines to do so, then it would be up to the courts to bring clarity— a lengthy and often uneven process.

“In a lot of ways this law is full employment for lawyers,” Kreis said. “I really think that folks need to know that this is quite destabilizing. Until there’s some more action by the General Assembly or others in power, lawyers will be the ones hashing this out for months and months.”

Staff writers Ariel Hart and David Wickert contributed to this report