Georgia’s abortion law gives “personality” rights to the embryo. What does that mean?


State agencies are not ready to fully enforce the law despite the fact that there have been signs for months that the Georgia law ban will likely be lifted this year.

Activists on both sides of the abortion debate began speculating in December that the U.S. Supreme Court would strike down Roe v. Wade, the nearly 50-year-old decision that guaranteed a constitutional right to abortion, after analyzing oral arguments on an abortion law. in Mississippi.

A draft copy of the Supreme Court’s opinion quashing Roe was leaked in May, setting the stage for the inevitable final decision in Dobbs v. Jackson Women’s Health Organization that was handed down in late June. On Wednesday, the US 11th Circuit Court of Appeals issued its order, allowing the Georgia law to go into effect.

Katie Byrd, the governor’s spokeswoman, said Georgia state agencies were working to implement the new law.

“Just as agencies have done in the past when we passed bills to expand pregnancy and parenting resources and improve our adoption system, the State of Georgia is ready and actively working to full implementation of Georgia’s (new abortion law),” Byrd said. in a report. “Respective and appropriate state agencies will provide information or communications as warranted and available.”

Yet several state agencies contacted by The Atlanta Journal-Constitution this week could not provide details about how they will implement the new “personhood” provisions or did not respond to a request for comment. Agencies responded similarly when contacted by AJC in 2019.

New Georgia law allows parents to claim an embryo, once a heartbeat is detected, on their state taxes as a dependent and requires state officials to count an unborn child in the Georgian population at the time of the census. It also expands the definition of “natural person” to “any human being, including an unborn child”.

The new law directs a handful of state agencies to implement the law’s “personality” provisions. For example, the Department of Revenue is responsible for creating the filing process for parents wishing to claim an embryo or fetus on their taxes.

“The department is actively monitoring this legislation and refining guidance in light of (Wednesday’s) court ruling,” revenue department spokesman Mason Rainey said. “We will release more information as soon as possible.”

The Department of Public Health has been instructed to update the state’s mandatory information script given to those seeking an abortion to include language that says “as early as six weeks gestation, an unborn child may have a detectable human heartbeat”. Obstetricians have said that in early pregnancy what you see are actually cells that will eventually develop into a heart emitting electrical signals and fluttering or shaking.

A DPH spokeswoman said the updated language is being revised and will be available on the website “soon”, with printed copies being mailed to abortion providers in two to three weeks.

Several hypothetical questions have been asked regarding the idea of ​​”personality,” ranging from the legality of a pregnant woman traveling in one of Georgia’s high occupancy vehicle lanes to whether the embryo of a person illegally in the United States has US citizenship rights.

“Giving a person full rights to a six-week embryo is not only inconsistent with what the law has been since Roe, but it’s like a whole different beast,” said Anthony Michael Kreis, a law professor at Georgia State University majored in Constitutional Law.

The answers are not simple, say legal experts.

“This is new territory,” said Fred Smith, professor of constitutional law at Emory University School of Law. “The Supreme Court, in Dobbs, said nothing about personality. … This is different. It raises all sorts of other questions, and it actually undermines the fetal heart activity part of the law.

Under the law, a provider who performs an abortion after fetal heart activity is detected would be guilty of criminal abortion and could face between one and 10 years in prison and loss of license. But opponents of the new law say if an embryo is a person, prosecutors could charge providers with murder at any stage of pregnancy.

“If it’s true that from the moment of conception you’re a person, then that raises questions around homicide, and that’s kind of inconsistent with the exemptions that apply to part of the bill,” Smith said.

The bill’s author, Setzler, who is an engineer, says a legal argument called the “leniency rule” requires courts to pursue the charge most favorable to a defendant.

“There are all sorts of theories of law where things can be charged, but convictions will only be handed down through criminal abortion law if there are in fact facts to back it up,” he said. he declared.

The new law will likely require legal experts to examine every mention of “natural person” or “human being” in Georgia’s code to see what the implications might be. A search for “natural person” in the georgia code annotated online showed that the term is mentioned 136 times in various laws and legislations.

“(The new law) applies not only in the context of abortion, but throughout Georgia’s code,” Setzler said. “Pregnant mums can now get child support from dads for all pregnancy-related expenses. Families who are expecting (one child) have a dependent minor at the time of tax return. Moms driving in the HOV lane can use the HOV lane because there are two humans in the car. There is an acknowledgment of that.

“We are looking at this more broadly than just the context of abortion. We recognize the humanity of the unborn because that’s what science, law and common sense tell us.

The HOV lane scenario takes place in Texas, which amended its law to define an embryo or fetus as a “person” in its state code. A woman there is challenging a ticket she received for driving in the HOV lane, saying that since she became pregnant, under state law, there were two people in the car.

The Georgia code states that “passenger vehicles occupied by two or more persons” may use HOV lanes and defines person as “any individual, partnership, corporation, association or private organization of any kind”.

The way that the The Department of Public Safety interprets the state code as more specificstating on its website that “vehicles with two or more people (alive and not pre-babies)” can use the lanes.

The DPS did not respond to a request for comment on the new law.

It remains to be seen what the implications of granting rights to an embryo from conception will be on Georgian laws.

“The collateral consequences of redefining who a person is – it’s so broad, so sweeping and touches every part of Georgian law,” Kreis said. “I don’t think anyone can reasonably say how it’s going to turn out.”

State Representative Mary Margaret Oliver, a Decatur Democrat and a lawyer, said the focus on determining “personality” implications is a distraction from the fact that access to abortion has been significantly limited.

“We’re going to spend hours of law review type discussions of what personality means from legal analysis, faith analysis and pure political analysis,” he said. she declared. “None of this time will really help the women of Georgia whose constitutional privacy rights they have enjoyed for more than 49 years have been taken away.

“The chaos created by person definitions and the application of the law is going to be a huge distraction and a painful waste of time, money and energy.”

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