The Following Thread was taken from twitter (@SenatorJen) and contains minor modifications (removal of hashtags)
There's a lot out there right now on the effects of HB 481. Some right and some wrong. So, I am going to go all lawyer on you guys with some pro bono analysis.
Hang with me because we are going to get in the weeds – but I think it is important.
HB 481 represents a C-change in GA law. It will now subject women to prosecution, in addition to physicians, for seeking to end a pregnancy at 5.5 weeks. As recently as 1998, courts found that GA wasn’t in business of criminally prosecuting women. Times sure have changed.
HB 481 changes the current criminal abortion law found in O.C.G.A. §§ 16-12-140 & 141 to include a more expansive version of “abortion” by defining it to encompass the actions that a woman might take to terminate a pregnancy and not just acts that would be performed on her by another:
The clear intent to prosecute women is confirmed by inclusion of new affirmative defense for women FROM criminal prosecution. No affirmative defense if no prosecution, right? As side note, Republicans know that fetal cardiac activity isn’t “heartbeat” – just look at language of HB 481:
But what about miscarriages? Could a woman be prosecuted for causing a miscarriage?
Under GA Law, a person commits the offense of criminal abortion when she violates O.C.G.A. § 16-12-141 by administering, using “any medicine, drug, or OTHER SUBSTANCE ” or “uses any instrument or OTHER MEANS WHATEVER” with the intent to produce a …wait for it… “MISCARRIAGE."
Rs argue that naturally occurring miscarriage doesn’t count because woman would have to INTEND to cause loss. But binge watch Law & Order for an afternoon & you will find that CRIMINAL INTENT is always sticking point and issue that goes to jury after full-blown criminal trial.
Or you could just read existing case law, couldn’t say it better than Ga Court of Appeals did in Hillman v. State:
Most first trimester abortions are nonsurgical & occur outside of a doctor’s office or hospital. These are called “medication abortions.” Per FDA medication abortion is approved for abortions up to 10 weeks’ gestation. The protocol involves two drugs—mifepristone and misoprostol.
Guess what these drugs do? They induce a miscarriage. So, if there is even a thought that a woman might have taken a drug that caused her to miscarry, healthcare providers would have a mandatory duty under Georgia law to report it to law enforcement. O.C.G.A. § 19-7-5 et seq.
But the most problematic part of HB 481 is the “personhood” aspect. Come January 1, 2020, GA will recognize a fertilized egg as a “natural person” under its laws. This where HB 481 takes us off the rails and into unknown territory.
How does it matter? Well, criminal laws we have to outlaw murder, manslaughter, etc. are in place to protect “natural persons.” So yes, if woman were to have miscarriage or seek an abortion, she could be prosecuted under any of these. It would be up to discretion of prosecutor.
I can hear the Twitterverse – "but, a prosecutor would never do that, right?"
Well, last time issue came up in Ga where pregnant teenager was trying to commit suicide by shooting herself in stomach – the prosecutor tried to do just that.
Thankfully, “personhood” wasn’t a thing way back in 1998. But it is now.
Oh, and did I mention that the position of District Attorney in this state is almost always a partisan political office? Let that sink in.