Georgia’s “fetal personhood” statute is uncharted territory

The state's LIFE Act, which was passed in 2019 and went into effect in July after the overturning of Roe v. Wade, does more than limit abortions. It also redefines when human life begins. With fetuses now entitled to due process, what does that mean for many of Georgia's laws?

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Georgia’s “fetal personhood” statute is uncharted territory
Governor Brian Kemp signs the LIFE Act into law on May 7, 2019. The law was blocked for two years before going into effect in July 2022.

Photograph by Bob Andres/Atlanta Journal-Constitution via AP, File

When it comes to curtailing abortion access, Georgia has emerged as something of the tip of the spear. The state’s six-week abortion ban, which Governor Brian Kemp signed into law in 2019, was part of a small cadre of “fetal heartbeat” laws passed by Republican-dominated legislatures around the same time. Georgia’s law, among the strictest in the country, outlaws most abortions once cardiac electrical activity can be detected in the fetal pole, generally around six weeks. (Such laws refer to this activity as a “heartbeat,” but many medical experts say such terminology is misleading.)

Blocked by a district judge for two years, Georgia’s law, dubbed the LIFE Act, went into effect in July, following the Supreme Court’s seismic ruling overturning the federal abortion protections established in Roe v. Wade. But as GOP-led states across the country tighten their abortion restrictions in the wake of Roe’s demise, it is Georgia’s “fetal personhood” provision—a reclassification, in legal terms, of the moment when human life begins—that has launched the state past its peers. It’s one of only a handful of such provisions nationwide and the farthest reaching. No one quite agrees where fetal personhood will lead from here, but it’s clear that Georgia has landed squarely in the abortion battle’s next frontier.

Legislating the unborn

The language of fetal personhood in Georgia’s newly enacted law reads: “It shall be the policy of the state of Georgia to recognize unborn children as natural persons.” It goes on to clarify that a natural person “means any human being, including an unborn child,” and that “‘unborn child’ means a member of the species Homo sapiens at any stage of development who is carried in the womb.”

Despite this broad language, the LIFE Act clarifies that not all fertilized eggs signify personhood. In interviews for this story, medical experts and legislators agreed that the term “womb” means that personhood does not apply to embryos created through assisted reproductive technology like in-vitro fertilization (IVF), in which embryos are created and stored at a fertility clinic. “‘The womb’ is not a medical term, but really ‘the womb’ means ‘uterine cavity,’” said Dr. Carrie Ann Cwiak, an OB-GYN, professor of obstetrics and gynecology at Emory School of Medicine, and one of several plaintiffs in a new lawsuit against Georgia’s abortion law. “If [an embryo] is outside the uterine cavity, then it appears that this isn’t anything that’s included in this bill.”

This also excludes embryos growing incorrectly outside the uterus, a medical issue called ectopic pregnancy. Ectopic pregnancies have near-zero chance of being viable and pose a serious health risk to the mother. The bill stipulates that removing an ectopic pregnancy is not considered an abortion.

And despite the capacious meaning implied by “Homo sapiens at any stage of development,” the text later clarifies that to qualify for the rights and protections enumerated in this law, embryonic or fetal cardiac activity must be detectable. Again, this activity is technically distinct from a “heartbeat”: according to the American College of Obstetric and Gynecology, the chambers of the heart aren’t developed in very early pregnancy, and the rhythmic sound that can be heard is actually the ultrasound machine communicating electrical impulses.

Thus, the fetal personhood statute is triggered at the same moment abortion becomes illegal. A person familiar with the drafting process for the bill, who asked to speak on background, explained that, while many of the law’s supporters believe firmly that personhood begins at conception, legislators tied the provision to fetal cardiac activity to establish a so-called “bright line test” that would simplify law regulation and enforcement.

Even accounting for exceptions around embryos not in the uterus, legal experts say the scope of fetal personhood is sweeping. “It essentially alters every single criminal and civil law in the state of Georgia,” said Anthony Michael Kreis, a constitutional law scholar and a professor at Georgia State University School of Law. “It’s a complete overhaul of the statutory regime of the state.”

Kreis explained that, historically, laws banning or restricting abortion were criminal statutes, regulating only doctors and the procedures they performed. By extending the designation of “natural persons” to fetuses growing in the womb, the law “has created an entirely new legal situation for almost every facet of the state.” That’s because a “natural person” is entitled to a robust body of civil rights—all of which, in Georgia, now apply to fetuses.

Until June, this was unconstitutional. When the Supreme Court decided Roe v. Wade in 1973, it rejected the fetal personhood argument presented by the state of Texas: “The word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn,” Justice Harry Blackmun wrote in the majority opinion. In the 1992 case Planned Parenthood v. Casey, the Court clarified that the earliest a state could consider a fetus to be alive was at viability (the point at which it can survive outside the womb), around 24 weeks.

By the time Dobbs v. Jackson Whole Women’s Health Organization was decided this summer, however, the Court’s conservative majority had changed its mind. Roe, wrote Justice Samuel Alito, “was egregiously wrong from the start.” By overturning Roe and Casey, the Court did away with the established limits to fetal personhood; states are now free to define a person as they see fit.

No taxation without fertilization 

A fetal person is one thing in theory. But what is it in practice? Georgia’s new law provides some instructions.

Once a fetus has detectable cardiac activity, pregnant women may claim it as a tax deduction: On August 1, the Georgia Department of Revenue issued a statement instructing that any Georgia taxpayer carrying an “unborn child with a detectable heartbeat” would be eligible for a $3,000 tax exemption per fetus. Expectant mothers can now also file for child support during pregnancy to pay for medical expenses and delivery. The law also instructs state officials to include fetuses in statewide population counts.

But the LIFE Act goes further than linking fetuses to tax deductions and census data. It’s the broad redefinition of personhood itself that is so unprecedented. In its opening paragraphs, the LIFE Act cites the hallowed protections enshrined in both the 14th Amendment of the U.S. Constitution and Georgia’s own state Constitution: due process and equal protection under the law. In Georgia, as of July 2022, those rights apply to embryos being carried by people who may not even realize they’re pregnant.

Equal protection and due process aren’t trivial legal concepts: from those civil liberties flow our right to attend integrated public schools, the right to legal counsel, and the right to citizenship for American-born babies. It is due process that established the right to use contraception and to same-sex and interracial marriage. (Ironically, of course, it was the right of due process that the Supreme Court relied upon to establish a right to obtain an abortion.)

While extending such rights to a person not yet born can seem nonsensical in some contexts—why would a fetus need a public defender?—the legal implications of Georgia’s new personhood provision are profound, not only for an unborn fetus, but also for the already-born people around it, who are newly responsible for its survival to term.

Georgia already has a feticide statute, which attaches civil or criminal penalties to the wrongful death of a fetus—if, say, a person loses their pregnancy in a car accident caused by someone else. State Representative Ed Setzler (R-Acworth), who sponsored the LIFE Act, said concerns over the broad implications of fetal personhood are overblown because the LIFE Act simply moves liability from “quickening” (around 16 weeks of pregnancy) to the earlier threshold of cardiac electrical activity.

But many legal scholars argue the law does more than simply move the line of liability; it adds another dimension to liability entirely. If a fetus has all the rights of a living person, then the people around it are legally responsible, not just in the case of its death, but for its positive welfare until birth. In his 2020 ruling blocking the law from taking effect, District Judge Steve C. Jones wrote that, under the proposed fetal personhood statute, “a pregnant woman with an eating disorder would be guilty of child cruelty . . . healthcare providers would run afoul . . . for failing to report a pregnant patient living with an abusive partner.”

And because the unborn fetus is now entitled to due process, legal experts and abortion supporters have warned that aborting one could very well result in murder charges.

Prosecuting abortion: new rules and new tools

The Georgia law is unequivocal about the criminality of providing an abortion: any physician who performs an abortion beyond the cardiac-activity limit is criminally liable, with certain exceptions listed in the law, including pregnancies that are medically futile, that gravely risk the mother’s health or life, or that are the result of rape or incest, provided a police report is filed. Georgia’s criminal code already makes performing an illegal abortion punishable by up to 10 years in prison.

And though several of the law’s supporters have said publicly that it is not intended to prosecute women who seek an abortion, critics counter that, as the law stands now, there’s not much preventing prosecutors from doing so if they choose. (Attorney General Chris Carr, who has been a vocal supporter of the law, has not said publicly how he believes it should be enforced; in a request for comment, a representative for Carr said it is the AG’s responsibility to defend Georgia’s laws in court, which Carr intends to do.)

Kreis, the constitutional law professor, brought up the example of a patient who travels to another state to legally obtain a medication abortion: “The first dose is usually taken in the doctor’s office, but the second one is taken a few days afterwards, at home . . . so if it’s seven weeks (into the pregnancy) and the patient takes that second dose [in Georgia] and induces an abortion on their own—is that murder? That’s where the personhood language becomes somewhat ambiguous.”

Whether or not the lawmakers who drafted the bill intended such an outcome, Kreis said, “You can see a prosecutor who really wants to be aggressive about it and finds out, really going after that person.”

Some district attorneys have already been clear about where they stand on the issue. On June 24, seven Georgia district attorneys—from Savannah; Macon; Augusta; Athens; and Gwinnett, Douglas, and DeKalb counties—joined a collective statement from the Fair and Just Prosecution group, declaring they would not seek criminal prosecutions against people who seek or provide abortions. The letter read, in part, “We stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions.”

Other Georgia DAs have announced they will pursue prosecutions on a case-by-case basis—to go after unsafe abortion providers, for instance.

Whether any prosecutor will press charges against women who end their pregnancies remains to be seen. When the LIFE Act passed in 2019, Ryan Leonard, then the DA of Douglas County, told Law.com’s Daily Report he thought the law could lead to murder charges against women for aborting their pregnancies. “If you look at it from purely a legal standpoint, if you take the life of another human being, it’s murder,” he said.

But the current Douglas County DA, Dalia Racine, was one of the seven Georgia DAs who’ve said they won’t prosecute abortion. To date, none of Georgia’s 50 DAs have said on record that they would pursue murder charges against women who abort their pregnancies, and given that a recent AJC poll found 55 percent of Georgians already oppose the new law, they’re likely aware that doing so could prove deeply unpopular with voters, who elect Georgia’s district attorneys. In the absence of legal clarity, public opinion may fill the void as a deterrent.

The thorny question of miscarriages

While the law leaves open the door for murder charges in abortion cases, it explicitly protects miscarriages from prosecution.

“The LIFE Act clarifies in law that a miscarriage or ectopic pregnancy cannot in any way be construed as an abortion,” said Rep. Setzler. He believes this makes the new statue “more protective” of people who miscarry than the prior law.

But the problem, medical experts say, is that miscarriage and abortion are not so easily disentangled. The clinical term for miscarriage is spontaneous abortion, and the medical care required closely overlaps with abortion. “The medications that are used to manage abortion and early pregnancy loss are the same,” explained Dr. Cwiak. “The surgeries are the same.”

While the law aims to shield miscarriages from the punitive measures targeting abortion, determining which is which may result in unprecedented scrutiny of miscarriage patients. That’s led to further concern about the law unfairly targeting poor women and women of color. Black women have significantly higher miscarriage rates than white women, and a 2013 study published by Duke University showed that they have been disproportionately targeted in prosecutions of pregnancy loss. Testifying in July to a U.S. Congressional committee on abortion access, Georgia State Rep. Renitta Shannon said, “I’m very worried that our criminal legal system will likely believe Karen, but not believe Keisha, when she says she had a miscarriage.”

And given the constitutional rights attached to fetal personhood, there is newfound concern that the state could start scrutinizing all pregnant people for evidence of fetal mistreatment.

“Are we prepared to prosecute women for engaging in any and all behaviors during [pregnancy] that could potentially harm a fetus?” asked Tanya Washington Hicks, a professor of law at Georgia State University School of Law. “Like certain kinds of exercise, eating certain foods, taking certain medications—even sleeping on your stomach?”

Even without fetal personhood statutes, criminalization of suspected fetal harm has been on the rise. A 2013 study found that, between 1973 and 2005, around 400 pregnant people were arrested or detained for crimes related to their pregnancy. A follow-up study by the National Advocates for Pregnant Women, tracking the same data between 2006 to 2020, found 1,300 such arrests. For example, in 2013, a Wisconsin woman was detained for over two months of her pregnancy in a court-ordered drug treatment facility despite never testing positive for drugs; she had a past history of drug use, and her medical provider didn’t believe she would stay sober. At the hearing, her fetus was given a lawyer, but she was not.

Many such prosecutions—which some critics refer to as “maternal policing”—have relied on fetal protection laws, which have proliferated in recent years. These laws are generally intended to protect pregnant women from violence by others, but are increasingly being employed to prosecute pregnant women for their own behavior.

But fetal protection laws are a different species than fetal personhood: Georgia’s personhood statute is the first to endow fetuses with the same constitutional rights as the person carrying it. Two other states, Alabama and Missouri, have a version of fetal personhood (two others are legally null: Arizona’s was blocked last month and Kansas’s was invalidated by a subsequent state supreme court decision protecting abortion rights, upheld recently by wide margins in a voter referendum). But Georgia’s goes the furthest, both in outlining new rights for fetuses and in explicitly connecting those rights to equal protection under the federal and state constitutions.

“The LIFE Act seems to suggest that the rights of the fetus as a person—the rights afforded any person under the 14th Amendment—can outweigh the right of a woman to take over-the-counter meds, or anything else she’d be entitled to do,” said Hicks.

The future of fetal personhood 

Fetal personhood may have launched Georgia into the future of abortion law, but the fight continues as it ever has. In July, a group of plaintiffs—including Cwiak and several other medical providers—filed a lawsuit in state court, arguing the LIFE Act violates the Georgia Constitution, which has a long tradition of upholding privacy rights. Before the current Supreme Court toppled Roe and Casey, the federal right to an abortion was built on the privacy protections found in the U.S. Constitution. But the same claim may prove more favorable in Georgia, explained Kreis, the constitutional law professor: “Georgia has a much more robust constitutional doctrine in that space, and that’s what the plaintiffs there are relying on.” (On August 15, a judge allowed the law to remain in effect while the lawsuit moves through court.)

Moreover, the dizzying array of questions presented by fetal personhood will doubtless provoke legal challenges; as courts address them, some clarity will begin to emerge about how this statute will be enforced. The state legislature could also amend the law in a future session, either to clarify some language or further tighten abortion restriction. Rep. Setzler declined to speculate on that possibility.

As states craft their own abortion laws in the wake of Dobbs, some will likely follow Georgia’s fetal personhood example. Their fate will be determined at the state level, resulting in the same kind of patchwork that we’ll see in abortion laws more broadly.

Roe made it simple,” said Hicks. “Now we can have personhood that starts at conception in one state, and in another, it doesn’t exist at all.”

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