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I do not intend here to persuade you that Georgia’s fetal heartbeat legislation, HB 481, is good law. We should be able to agree or disagree with a law without having to lie about the law and scare people.
Abortion activists claim the new Georgia law will allow women to be arrested and charged with murder for having an abortion. Others claim that a woman could be investigated for having a miscarriage. None of this is true.
Georgia laws are codified in what is called the Official Code of Georgia, Annotated, or the OCGA. HB 481, the Living Infants Fairness and Equality Act, will restrict abortion in Georgia after a fetal heartbeat is detected, which typically happens around the sixth week of a pregnancy.
The way legislation is drafted in Georgia, including HB 481, involves referencing existing provisions of the OCGA and changing them, deleting them, or adding to them. For example, OCGA § 1-2-1 is changed by adding a new section (b) that reads “’Natural person’ means any human being including an unborn child.” A new section (e) is also added that defines an “unborn child” as “a member of the species Homo sapiens at any stage of development who is carried in the womb.”
There are other portions of the Georgia code that are changed. But one key provision of the Georgia code is not changed. OCGA § 16-5-80 is the statute on “feticide,” which applies to the death of an “unborn child.” The definition for unborn child in that statute is the same definition used by HB 481.
Under this law, no woman can be prosecuted for the death of her unborn child for any reason. This statute has been the law of Georgia since 1876 and Georgia’s courts have always strictly applied in.
In 1998, Georgia prosecuted Jacquelyn Aretha Hillman for aborting her child. Because Georgia law prohibits a mother from being prosecuted for the death of her unborn child, the prosecutors sought to charge Ms. Hillman under OCGA § 16-12-140, which governs the methods by which an abortion can be performed. Essentially, the prosecutors argued Ms. Hillman took on the role of her own abortionist and performed an abortion contrary to state law. Specifically, Ms. Hillman “was an 18-year-old single parent and approximately eight months pregnant” when she allegedly used “a handgun to shoot herself in the abdomen” to kill her baby. See Hillman v. State, 232 Ga. App. 741.
The Georgia Court of Appeals rejected the prosecution’s novel argument. The court ruled that OCGA § 16-12-140 does not apply to pregnant women. It only applies to third parties who perform abortions. In fact, HB 481 does amend that portion of the law, but does not apply it to pregnant women. Specifically, the change gives doctors an affirmative defense to avoid punishment for performing abortions by showing a mother sought an abortion believing it was necessary to preserve her life.
Contrary to the claims of many, the court ruled that no woman can ever be prosecuted in Georgia for the death of her unborn child for any reason, no matter the method by which she ends her pregnancy. The court state that to do otherwise would subject women to investigation for miscarriages.
Georgia’s new law, HB 481, does many things, including letting women sue fathers for child support while pregnant. But it does not change existing law on prosecuting women for having abortions or miscarriages. To say otherwise is simply not true. These are the facts.
Erick Erickson is host of Atlanta’s Evening News on WSB Radio.