There has been widespread speculation and confusion as to what punishment awaits someone who violates the strict six-week abortion ban recently signed by Gov. Brian Kemp.
Could a woman who aborts an embryo with a detectable heartbeat be charged with murder? Could murder charges be filed against the doctor who performed the abortion, the nurse who assisted or a pharmacist who prescribed the drugs? Could the law trigger a death penalty prosecution? What if someone drives a pregnant woman across state lines to get an abortion elsewhere? Is that conspiracy to commit murder?
The so-called heartbeat law, which is to take effect Jan. 1, is certain to face legal challenges. It could also provoke a dizzying array of possible outcomes and, perhaps, unintended consequences. That's because House Bill 481 recognizes an embryo or fetus with a detectable heartbeat as a "natural person" who must be included in the state's population figures, who can trigger child support obligations and who can be named as a dependent in tax filings.
The new law also says a natural person “means any human being.”
The addition of those two words — human being — has sent legal scholars into a frenzy, poring over court precedents and re-reading Georgia’s criminal code. One code section sticks out like a sore thumb: A person commits the offense of murder when he or she “with malice aforethought … causes the death of another human being.”
For this reason, it appears that district attorneys could seek murder charges against those who can be found criminally liable under the heartbeat law — a mother as well as the doctor, nurse or pharmacist who assist in an illegal abortion. But whether a DA would actually choose to seek a murder charge and whether that charge would stick are entirely different questions.
“It’s not a black-and-white issue to me, but what complicates matters is that declaration of personhood,” said Ron Carlson, a University of Georgia law professor. “If this bill is upheld, there could conceivably be a test case that will have to be decided by the Georgia Supreme Court.”
The Georgia law is one of a number of restrictive abortion measures adopted recently by legislators in conservative states. On Wednesday, Alabama Gov. Kay Ivey signed a bill that went even farther than Georgia’s, outlawing nearly all abortions at any stage of pregnancy. One of the laws will almost certainly rise to the U.S. Supreme Court which could reconsider its historic 1973 decision in Roe v. Wade allowing access to abortion.
New Legal Landscape
The new laws are running headlong into uncharted legal territory.
Gwinnett County District Attorney Danny Porter said the Georgia measure could lead to all sorts of criminal charges that could not have been brought before. For example, a person who attacks a pregnant woman could be subject to assault charges against the embryo.
What if a man left his unborn grandson a trust fund? A person who stole money from the fund could now be charged with defrauding the unborn child, because the fetus would have a property interest under the new law, Porter said.
If murder charges can indeed be brought, what about someone who knowingly kills a pregnant woman with a fetus with a detectable heartbeat? the DA asked. Conceivably, that person could be eligible for a death-penalty prosecution because he met one of the 10 criteria that allow prosecutors to seek it: committing a double murder.
Porter said he is still on the fence as to whether a woman who has an abortion or self-induces a miscarriage could be actually charged with murder under the new law.
“I think the law raises legal issues beyond whether or not it is constitutional,” Porter said. “There will be a significant amount of litigation before this is all ironed out.”
The bill's chief sponsor, Rep. Ed Setzler, R-Acworth, said he doesn't support charging a woman who has an abortion with murder and insists the law doesn't allow that. He cites the legal doctrine known as the rule of lenity. That is, when two statutes can be used for the same criminal conduct, any ambiguity is resolved in the defendant's favor. In other words, the provision with the lesser punishment applies.
For this reason, women can be prosecuted under Georgia’s criminal abortion statute,which carries a maximum sentence of 10 years in prison, as opposed to murder, which carries a mandatory life sentence, Setzler said.
“This was all part of the debate on the bill,” the lawmaker said. “It was settled then and it’s settled now. All of this is a political distraction.”
But both prosecutors and defense lawyers say Setzler’s reliance on the rule of lenity is misguided. That’s because defendants can invoke it only at the time of sentencing, after a conviction has been obtained. In other words, it doesn’t necessarily bar a district attorney from seeking a murder charge.
‘A Frankenstein Law’
The ACLU of Georgia has vowed to file a challenge to the law before it takes effect in January. Sean Young, its legal director, said the Legislature “created a Frankenstein law with far-reaching consequences that its creators can no longer control.”
If Setzler is serious about protecting women from murder prosecutions, “he should obtain a written commitment from the district attorneys of all 159 counties not to bring murder charges against women, doctors, nurses and pharmacists,” Young said. “If he can’t, then he shouldn’t have passed this law in the first place.”
With some exceptions, HB 481 expressly makes it a crime for a woman to have an abortion after a fetus’ heartbeat is detected — usually at about six weeks into a pregnancy and before some women know they are pregnant. Charges cannot be brought if was a medical emergency, if the woman’s life was threatened or if she was the victim of rape or incest — and had reported it to the police.
Atlanta criminal defense attorney Brian Steel, who has studied the law, believes there are a number of reasons prosecutors will not be able to obtain murder convictions against those who violate HB 481.
One factor is a 2011 opinion by the Georgia Supreme Court involving a Columbia County man convicted of killing four people on Thanksgiving in 1998. His victims included a pregnant woman and her unborn child.
In a unanimous opinion, the state high court threw out the murder conviction on grounds the unborn child “never had an independent circulation or … independent existence.” wrote former Chief Justice Harris Hines, explaining why the murder conviction couldn’t stand.
“Our case law tells us that you can’t have a murder of an unborn child,” Steel said. “In order to commit the murder of a human being, in this case a child, the child has to be outside the mother and living on its own. Does that change with the new law? We’ll have to wait and see.”
Credit: Bob Andres
Credit: Bob Andres
There is also a 2016 ruling in which the state Supreme Court said it defers to specific statutes as opposed to more general ones. This would favor the criminal abortion statute being used to prosecute offenders of HB 481 as opposed to the murder statute, Steel said.
Prosecutorial Discretion
Finally, Steel notes, someone can still be charged in Georgia with feticide, which carries a life sentence, by causing the death of an unborn child inside a mother’s womb. If so, then why did lawmakers leave that statute intact if they intended for prosecutors to pursue a murder charge for the abortion of a fetus with a detectable hearbeat? the attorney asked.
Further complicating the issue is a 1998 Georgia Court of Appeals decision that found the criminal abortion statute “does not criminalize a pregnant woman’s actions in securing an abortion, regardless of the means utilized.”
While this appears to clear women from being prosecuted under that statute, HB 481 specifically amends the criminal abortion law. And because it says a woman cannot be prosecuted if she reasonably believed an abortion was the only way to prevent a medical emergency, it seems to suggest she could be prosecuted under other circumstances.
Credit: Alyssa Pointer
Credit: Alyssa Pointer
Criminal defense attorney Andrew Fleischman, who’s also reviewed the law, said he believes it’s possible a DA could bring a murder charge under the new law and get it upheld on appeal. The same could be true for a conspiracy charge of someone taking a pregnant woman to another state to get an abortion, he said.
Setzler said he believes a conspiracy charge could not be brought because the woman would presumably be having an abortion in a state where’s it’s legal. But Fleischman noted that someone who tries to send a kilogram of marijuana from Georgia to Colorado, where pot is legal, could still face criminal charges here.
Fleischman said he hopes prosecutors will use their discretion and not seek murder charges under the new law. “But they could, and they’re elected,” he said.
“Still, we can’t allow an overly broad statute to stand simply because the state promises to use it responsibly,” he said, then drawing from a James Madison passage in the Federalist Papers. “If we were governed by angels, we wouldn’t need these safeguards. But we’re not governed by angels.”
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