On Monday, Georgia Republican Gov. Brian Kemp signed HB 481, the most extreme abortion ban in the country. In addition to criminalizing abortion after about six weeks, the law threatens to imprison women who terminate their pregnancies. It also grants full legal personhood to fetuses, ensuring that anyone who terminates a pregnancy after six weeks—including a pregnant woman herself—may be liable for murder. Women who miscarry may be investigated and charged if prosecutors believe they are responsible for “the death of an unborn child.” Advertisement Democratic Sen. Jen Jordan, an attorney and fierce opponent of the bill in the state Senate, has warned Georgians about the dramatic consequences of HB 481. On Friday, we spoke about the dire ramifications of the law, as well as the effort to block it before it takes effect in 2020. Our conversation has been edited and condensed for clarity. Advertisement Advertisement Mark Joseph Stern: You’ve pointed out that HB 481 expands the legal definition of abortion to encompass actions a woman takes to terminate her own pregnancy, not only acts performed on her by another. Do you think the bill subjects women to prosecution if they self-terminate? Jen Jordan: Yes. If there was any doubt in terms of opening up women to prosecution, all you have to do is look at the affirmative defense added to the bill. Advertisement Right. The law allows women who are prosecuted for undergoing an abortion to argue in court that they “reasonably believed that an abortion was the only way to prevent a medical emergency.” It obviously foresees women being prosecuted. It’s Criminal Law 101 that you don’t need an affirmative defense from criminal prosecution if there is no intent to criminally prosecute someone. The inclusion of that affirmative defense is the clearest intent that we have that this was exactly what the Republicans are trying to do. Under HB 481, could prosecutors charge a woman who miscarries? We knew this was bad policy in 1998. We’re going backward. — Georgia state Sen. Jen Jordan Yes. In a 1998 case, Hillman v. State, prosecutors charged an 18-year-old girl who was eight months pregnant and shot herself in the stomach. She was indicted for trying to “produce a miscarriage.” But the court said, look, we’re not in the business of criminally prosecuting women when it comes to self-termination because it’s bad public policy. The court itself listed a long line of things that could happen if it did. [Note: The court explained that pregnant women who miscarry after smoking, drinking, or failing “to secure adequate prenatal medical care” could be “at risk of a criminal indictment.”] Advertisement Advertisement Hillman interpreted the statute as it existed in 1998. Now all of these things the court talked about—the reasons why it’s bad public policy to charge women who miscarry—could happen under HB 481. It opens the door to prosecution of women who miscarry. We knew this was bad policy in 1998. We’re going backward. Some proponents of HB 481 say prosecutors won’t charge women who self-terminate. But at least one Georgia prosecutor already tried under the old legal regime, and the new law seems to give motivated prosecutors a way to make those charges stick. The bill allows massive prosecutorial discretion. There are prosecutors in the state who do incredible work every day. But there are also prosecutors in this state who are incredibly political. In a state where many district attorneys run as partisans, you can imagine a situation where a prosecutor would try to do exactly what we saw in Hillman v. State. This law just gives so much discretion to prosecutors, and that’s incredibly dangerous. It opens the door to disparate enforcement against racial minorities, too. There’s so much bad there. That’s why it’s so important that this law never go into effect. Advertisement Advertisement An equally alarming provision of the bill grants legal personhood to fetuses, granting them full rights under Georgia law. That means women who self-terminate could be prosecuted for murder. The personhood thing—that’s the hook for all of it. Because once someone is a person in the state of Georgia, they are entitled to all the protection of all the laws of Georgia. Not just the statutes that govern abortions, but all of them. So we can look at the abortion statutes, but really it’s the personhood thing that changes everything. Do you think a majority of legislators who supported HB 481 realized that they were subjecting women who self-terminate to murder charges and all these grave consequences? Advertisement No. This has been a problem across the board up at the General Assembly. Everybody thinks that the majority of people up there are lawyers, and that’s not true. We don’t even have enough lawyers to fill the Judiciary Committee in the Senate. That’s problematic. To really understand HB 481, you needed to look at the entire statutory regime. It references back to different statutes. It’s almost like a puzzle you have to put together. If you’re not a lawyer, you don’t know how to do that. If you don’t know how to do it, you rely on the team mentality. “The Republican leadership and the governor say that this is what we have to do as Republicans and this is going to save lives.” There’s no independent research. Republican legislators rely on folks telling them this is great, there’s no problem, we need to vote for it. But if you do a deep dive and see what the implications are, I can’t see how any rational person would think that this is a good idea. Advertisement Advertisement The weird consequences certainly go beyond punishing women. It’s fantastical. What about women pregnant in prison? Now you’ve got a baby that hasn’t been given due process and is in prison? It sounds ridiculous because it’s ridiculous. If you see a pregnant woman eating sushi, do you call the Division of Family and Children Services and make a complaint? It’s that kind of stuff. If you’re pregnant, you’re driving in the HOV lane, and an officer pulls you over, do you say, “Don’t worry, officer—me and my zygote, we’re good.” The Office of Legislative Counsel told us that if an undocumented immigrant in the state is pregnant, that fetus is considered a Georgia resident, a citizen, and a person entitled to all the aid and health care a Georgia resident is entitled to. But the mother herself couldn’t get any benefits. Advertisement This law is so irrational. It just doesn’t make sense because it’s so absurd. When I first read it, it was like, Come on. No way. This isn’t happening. There are so many problems with this. But now it’s the law, so we need to tell people and educate women in terms of what could happen. Advertisement Advertisement HB 481 is set to take effect on Jan. 1, 2020. Why the delay? And do you think it’ll ever actually go into effect? The law can’t take effect until January because it categorizes fetuses as “minor dependents” under the Internal Revenue Code. And any time we create tax exemptions or deductions in Georgia, they have to start on Jan. 1. That actually helps us—it puts off the effective date and gives all the people fighting against this law the time to craft the best legal arguments to make sure it gets stopped immediately in the courts. We also need to make sure this gets repealed. We need a legal approach and an electoral approach. Advertisement Do you think a majority of Georgians support the law? A majority of Georgians don’t know what’s in it. When you ask a general question in terms of abortion restrictions, a lot of people are in favor of them, if they’re constitutional. But when you actually start to drill down in terms of what this law does, people are appalled. Republican women know this just goes way too far. But we really need to get the word out. People need to understand exactly what their elected officials are doing under the gold dome. This goes way further than any constitutional abortion restrictions the courts would ever allow. I don’t want to scare people or be alarmist.<doc-sep>On Tuesday, Gov. Brian Kemp of Georgia signed HB 481, a bill banning abortion after five to six weeks of pregnancy. It's set to take effect January 1, but at least two reproductive-rights organizations are challenging it on the grounds that it violates Roe v. Wade. In addition to banning abortion after a heartbeat can be detected, the law's personhood provisions would seem to allow for women who perform their own abortions, travel out of state for an abortion, or are found to be responsible for a miscarriage to be charged with murder. While many states have recently approved six- or 15-week abortion bans in an effort to bring a case to the Supreme Court for the purposes of overturning Roe v. Wade, Georgia's law goes further than others in holding women criminally responsible. Visit Business Insider's homepage for more stories. On Tuesday, Gov. Brian Kemp of Georgia signed the "heartbeat bill" HB 481 into law. While the bill's main goal is to outlaw abortion after five to six weeks of pregnancy, the law's provisions establish fetuses as full people under the law — meaning women could be held criminally responsible for seeking an abortion or even for having a miscarriage. Attorneys with the American Civil Liberties Union's Reproductive Freedom Project and the Center for Reproductive Rights told INSIDER on Tuesday that they're planning on challenging the law, which is set to take effect January 1, on the grounds that it violates Roe v. Wade, the landmark Supreme Court decision that protects the right to abortion until the point of viability. For now, abortion is still legal in Georgia, and it will remain that way if the law, like every six-week ban that other states have attempted to enact, is struck down in court. Read more: Georgia governor signs 'heartbeat bill' restricting abortion access, setting the stage for a court battle over the law While many states have recently passed six- or 15-week abortion bans in an effort to bring a case to the Supreme Court for the purposes of overturning Roe v. Wade, the legal reporter Mark Joseph Stern pointed out in a recent Slate article that Georgia's law went further than others in the criminal penalties women would face. In addition to banning abortion after a heartbeat can be detected, the law's personhood provisions: Allow fetuses to be claimed as dependents for tax purposes. Count fetuses as people in official population surveys, which would have implications for political representation. Allow for women who perform their own abortions outside a formal medical setting to be charged with first-degree murder, which could carry a sentence of up to life in prison or the death penalty. By defining fetuses as people, the law would appear to have implications far beyond those directly addressed in its text. State prosecutors, for example, might be able to charge women whose pregnancies end in miscarriage with second-degree murder, which carries a sentence of 10 to 30 years, if they can prove the miscarriage was a result of the woman's own conduct, like drug or alcohol use, as Slate argued. In a follow-up interview with Slate, Georgia State Senator and attorney Jen Jordan, who also wrote a detailed Twitter thread on the matter, explained how fetal personhood enables prosecutors to charge people who suffer miscarriages with second-degree murder. Jordan explained how a 1998 Georgia court case Hillman vs. State, prosecutors charged an 18-year old woman who shot herself in her abdomen while pregnant with attempting to "produce a miscarriage" — but a court threw out the indictment partly because they didn't want to supersede the legislature, which had then "refused to criminalize a pregnant woman's acts in securing an illegal abortion." At the time, the Court of Appeals explicitly said that changing the law to prosecute women who performed their own abortions, which HB 481 does by defining fetuses as people, could warrant "a criminal indictment for virtually any perceived self-destructive behavior during her pregnancy which could cause a late-term miscarriage, to wit: smoking or drinking heavily; using illegal drugs or abusing legal medications; driving while under the influence of drugs or alcohol; or any other dangerous or reckless conduct." A woman who travels out of state for an abortion — and anyone who assists her — might similarly be charged with conspiracy to commit murder under Georgia's fetal personhood law. Critics of the law found the prospect of criminalizing some miscarriages especially alarming given that approximately one in four first-trimester pregnancies ends in miscarriage, with the vast majority resulting from genetic abnormalities. Many women miscarry before they even know they're pregnant, sometimes mistaking the bleeding from a miscarriage for a late period. Georgia isn't the only state that has begun testing the limits of the law by conferring personhood to fetuses and embryos. In Alabama, which enacted its own personhood statue in 2018, a district court gave the estate of a 6-week-old aborted embryo legal standing to sue an abortion clinic for wrongful death in a suit initiated by the embryo's would-be father. As the appellate attorney Andrew Fleischman pointed out on Twitter, establishing fetal personhood has implications not only for civil litigation but for the criminal-justice system as well, since it would extend the constitutional rights to due process, a fair trial, and the right to counsel for fetuses whose mothers have been charged with a criminal offense. Read more: The Alabama Senate floor broke out into a chaotic screaming match over a bill that would ban almost all abortions "Georgia has just passed a bill granting full 14th Amendment rights to all unborn children," he wrote. "As of this minute, Georgia is now holding thousands of citizens in jail without bond in violation of their rights. "If you're a criminal defense lawyer with a pregnant client, now is the time to petition for a guardian ad litem or juvenile attorney to represent the unborn to secure their release." Under Georgia's law, it's unclear whether fetuses would be given their own separate trials or right to counsel if their mothers were charged with crimes, what would happen if a jury found a mother guilty but her fetus innocent, or whether all incarcerated pregnant women would have to be released from prison once the law goes into effect, since their fetuses were not charged with a crime. Fetal personhood statues not only have untested implications for abortion but, if upheld by a court, could also jeopardize the legality of fertility treatments like in vitro fertilization or even surrogacy, both of which commonly involve the destruction of embryos that would qualify as people under the law. Read more: Busy Philipps encourages women to speak out against Georgia's abortion ban and reveals her own experience at 15 While many prominent Democratic politicians and activists have expressed alarm over the law, previous legal precedent suggests its chances of going into effect are slim. Still, Georgia's approving the law does reflect an increased fervor to drastically limit abortion, with the aim of bringing a case that could prompt the newly conservative-leaning Supreme Court to overturn Roe v. Wade. So far, no state has successfully implemented a six-week abortion ban or brought a case testing the legality of one to the nation's highest court. Iowa's attempt at enacting a "heartbeat bill" was struck down by a state court, and North Dakota's was struck down by a federal court for violating Roe v. Wade. The governors of Mississippi, Ohio, and Kentucky have signed similar six-week abortion bans into law, all of which are being challenged in court. Alabama is set to pass a law banning all abortion, which will most likely be struck down, and a 15-week ban passed by Mississippi was blocked by a federal judge last year.<doc-sep>“In addition to giving women the right to choose whether to terminate a pregnant, the court also said that right is not absolute and there are certain rules that govern how long that right lasts,” Sanger explained. To do that, it looks to trimesters and viability, ignoring that reason a woman chose to have an abortion.<doc-sep>
On Tuesday, Georgia Republican Gov. Brian Kemp signed a “fetal heartbeat” bill that seeks to outlaw abortion after about six weeks. The measure, HB 481, is the most extreme abortion ban in the country—not just because it would impose severe limitations on women’s reproductive rights, but also because it would subject women who get illegal abortions to life imprisonment and the death penalty. The primary purpose of HB 481 is to prohibit doctors from terminating any pregnancy after they can detect “embryonic or fetal cardiac activity,” which typically occurs at six weeks’ gestation. But the bill does far more than that. In one sweeping provision, it declares that “unborn children are a class of living, distinct person” that deserves “full legal recognition.” Thus, Georgia law must “recognize unborn children as natural persons”—not just for the purposes of abortion, but as a legal rule. This radical revision of Georgia law is quite deliberate: The bill confirms that fetuses “shall be included in population based determinations” from now on, because they are legally humans, and residents of the state. But it is not clear whether the bill’s drafters contemplated the more dramatic consequences of granting legal personhood to fetuses. For instance, as Georgia appellate attorney Andrew Fleischman has pointed out, the moment this bill takes effect on Jan. 1, 2020, the state will be illegally holding thousands of citizens in jail without bond. That’s because, under HB 481, pregnant inmates’ fetuses have independent rights—including the right to due process. Can a juvenile attorney represent an inmate’s fetus and demand its release? If not, why? It is an egregious due process violation to punish one human for the crimes of another. If an inmate’s fetus is a human, how can Georgia lawfully detain it for a crime it did not commit? But the most startling effect of HB 481 may be its criminalization of women who seek out unlawful abortions or terminate their own pregnancies. An earlier Georgia law imposing criminal penalties for illegal abortions does not apply to women who self-terminate; the new measure, by contrast, conspicuously lacks such a limitation. It can, and would, be used to prosecute women. Misoprostol, a drug that treats stomach ulcers but also induces abortions, is extremely easy to obtain on the internet, and American women routinely use it to self-terminate. It is highly effective in the first 10 weeks of pregnancy. Anti-abortion advocates generally insist that they do not want to punish women who undergo abortions. But HB 481 does exactly that. Once it takes effect, a woman who self-terminates will have, as a matter of law, killed a human—thereby committing murder. The penalty for that crime in Georgia is life imprisonment or capital punishment. It is entirely possible that Georgia prosecutors armed with this new statute will bring charges against women. HB 481 would also have consequences for women who get abortions from doctors or miscarry. A woman who seeks out an illegal abortion from a health care provider would be a party to murder, subject to life in prison. And a woman who miscarries because of her own conduct—say, using drugs while pregnant—would be liable for second-degree murder, punishable by 10 to 30 years’ imprisonment. Prosecutors may interrogate women who miscarry to determine whether they can be held responsible; if they find evidence of culpability, they may charge, detain, and try these women for the death of their fetuses. Even women who seek lawful abortions out of state may not escape punishment. If a Georgia resident plans to travel elsewhere to obtain an abortion, she may be charged with conspiracy to commit murder, punishable by 10 years’ imprisonment. An individual who helps a woman plan her trip to get an out-of-state abortion, or transports her to the clinic, may also be charged with conspiracy. These individuals, after all, are “conspiring” to end of the life of a “person” with “full legal recognition” under Georgia law. It is entirely possible that Georgia prosecutors armed with this new statute will bring charges against women who terminate their pregnancies illegally. In 2015, a Georgia prosecutor charged Kenlissia Jones with murder after she self-terminated; he only dropped the charges after concluding that “criminal prosecution of a pregnant woman for her own actions against her unborn child does not seem permitted.” Starting in 2020, however, Georgia law will permit precisely this kind of prosecution. There is no reason to doubt that history will repeat itself, and more prosecutors will charge women who undergo abortions with murder.