DeKalb County District Attorney Sherry Boston has raised problems with Georgia’s new anti-abortion “heartbeat” law, House Bill 481. “As district attorney with charging discretion, I will not prosecute individuals pursuant to HB 481 given its ambiguity and constitutional concerns,” Boston said. (DAVID BARNES / SPECIAL)

DIGGING DEEPER: Georgia DAs divided over prosecution of ‘heartbeat’ law

The anti-abortion “heartbeat” measure that Gov. Brian Kemp recently signed has split prosecutors who are trying to decide whether they’d enforce stiff new restrictions that impose new penalties on those who violate the law.

Some district attorneys say they wouldn’t prosecute anyone under the new crackdown. Some said they’d address each on a case-by-case basis. Some said they hadn’t reviewed it because they suspect the law will be tied up in the courts. And one raised the possibility of charging women seeking abortions.

The differences surfaced in an Atlanta Journal-Constitution survey of the 49 district attorneys across Georgia. The responses mirrored the larger battle over the law, which would outlaw most abortions as early as six weeks into a pregnancy when it takes effect in January — but faces a certain legal challenge before then.

Seventeen district attorneys responded to the AJC’s request for comment. The others did not reply to calls and emails seeking their thoughts on the law.

The majority of prosecutors who responded, including many who hold office in more conservative areas, said it was inappropriate to make blanket statements about the law before knowing the merits of each case.

Douglas County District Attorney Ryan Leonard warned that the new restrictions could be used to prosecute pregnant women who have the procedure. Although the bill’s sponsors say it should not be used to seek charges against women, he said the law does not explicitly exclude women.

Some other respondents said they would not, or could not, use the law to seek criminal charges against women seeking abortions. Three — in heavily Democratic circuits in Atlanta, Macon and DeKalb County — said they wouldn’t prosecute doctors, nurses and others who carry out abortions. All but one Democrat in the General Assembly voted against the law.

“I will exercise my discretion not to prosecute women and doctors for exercising their constitutional rights,” Macon District Attorney David Cooke said. “It’s unfortunate that this law may turn a miscarriage into a crime scene, and I will not allow that to happen on my watch.”

The survey offers a snapshot of the confusion sparked by the legislation, which narrowly passed the Legislature with Kemp’s vocal support. The law has triggered threats of Hollywood boycotts and a promise of a legal challenge; supporters hope it lands in the U.S. Supreme Court.

‘Ambiguity’

The Georgia legal community has speculated and debated potential consequences of the legislation, which recognizes an embryo or fetus with a detectable heartbeat as a “natural person” — defined in the statute as a human being.

The measure’s supporters point to case law that concludes that women can’t be charged under a criminal abortion statute for seeking the procedure, but some legal scholars say this new law could open the door to a different interpretation that might allow prosecutors to seek murder charges.

The legislation’s supporters say the punishments, which carry a maximum prison sentence of 10 years, were aimed at abortion providers who violate the law, including doctors, nurses and pharmacists.

State Sen. Renee Unterman, a Buford Republican who ushered the legislation through the Senate, called assertions that women could be prosecuted “ridiculous.”

“That is a false narrative being promoted by the other side — as a way to gin up support — that we’re going to put women in jail,” she said. “The intent is (to penalize) the providers that the law was written for.”

The bill’s sponsor, Acworth Republican state Rep. Ed Setzler, declined to comment.

Leonard, a Republican, did not immediately respond to a request for comment, but he told The Daily Report that judges are bound by what the law says, not by what legislators may have intended. He said, “from a purely legal standpoint,” taking the life of another human being is murder.

“Based on my review, the only crime it could fall under is murder. Nothing else criminalizes this conduct,” Leonard said. “The only way to be 100 percent sure you’re not prosecuted under it is not to have an abortion.”

On the flip side of the coin, a handful of prosecutors said they would not enforce any restrictions against abortion providers, either. They include Cooke, Sherry Boston of DeKalb County and Paul Howard of Fulton County.

“As district attorney with charging discretion, I will not prosecute individuals pursuant to HB 481 given its ambiguity and constitutional concerns,” Boston said. “As a woman and mother, I am concerned about the passage and attempted passage of laws such as this one in Georgia, Alabama, and other states.”

‘Case-by-case basis’

Others seem more torn over the law. The chief prosecutors in Cobb and Gwinnett counties both said they could potentially use the law to seek charges against abortion providers, but that they don’t believe it’s legally possible to prosecute women.

“As a matter of law (as opposed to politics), this office will not be prosecuting any women under the new law as long as I’m district attorney,” Gwinnett DA Danny Porter said in a statement.

Same for Layla Zon, the top prosecutor for Walton and Newton counties, who said her duty is to uphold the law “based upon facts and not upon political reasons.” She would not use the law to prosecute women, she said, but left the door open to charging abortion providers.

In some deeply conservative parts of the state, the contrast was starker. Jonathan Adams, the district attorney for a stretch of Middle Georgia counties, expressed his support for legislation “to protect lives in Georgia” and praised the governor and lawmakers for passing it.

While he said he doesn’t believe the law would apply to women seeking abortions under any circumstance, he said “there are situations where our office would pursue cases against criminal abortion” against providers.

Other prosecutors were uncomfortable making statements about laws they could soon wrestle over in court. Bert Poston, the Dalton district attorney, said he hasn’t closely studied the legislation, but that he doesn’t want to paint himself in a corner.

“If law enforcement makes a case,” he said, “I’ll review the evidence and applicable law and make a decision on a case-by-case basis.”

Oconee District Attorney Tim Vaughn said it’s premature to make any pronouncements about his strategy, particularly when he’s certain the appellate courts “will have a lot to say about this statute before any of us are required to make charging decisions.”

And some prosecutors raised the possibility that they wouldn’t have any applicable cases even if the law survives a court challenge.

Ocmulgee District Attorney Stephen Bradley said no prosecutor “can or should ignore a law.” Still, he noted, in 25 years as a prosecutor he hasn’t seen a case that would have required charges under the new law.

“Nonetheless, as with all matters, if a case is presented to our office,” he added, “we will look at it carefully in light of the law and the facts as they appear at that time.”

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