NEW REPORT: Kemp’s Extreme Abortion Ban Targets Pregnant Women

Abortion law “opens up a Pandora’s box of surveillance and criminalization targeting anyone in the state who can become pregnant.”

A new report from HuffPost is digging into how Gov. Brian Kemp’s extreme abortion ban opens pregnant women up to prosecution – even those who had a natural miscarriage. Because abortion is “medically indistinguishable” from a miscarriage, Kemp’s restrictive law “empowers officials to scrutinize, surveil and criminalize not only women seeking abortion care, but also women with wanted pregnancies.”

The new report lays out the implications of Kemp’s ban on abortion, including the fact that the law grants full legal rights to fetuses, which has serious implications for Georgia law — pregnant women could be prosecuted if something were to happen to their fetuses. The article warns that Kemp’s law “effectively opens up a Pandora’s box of surveillance and criminalization targeting anyone in the state who can become pregnant.”

The article follows others that have raised concerns about Kemp’s extreme abortion ban – and just a couple of months ago, a group of Georgia doctors raised similar concerns about Kemp’s abortion ban, noting that it could threaten their ability to treat miscarriages, force doctors and women to live under constant fear of investigation or criminal prosecution, and intensify stress on Georgia’s health care system.

Kemp has refused to “specifically respond to how medical emergencies would be deciphered” under his extreme ban on abortion and as the HuffPost report notes, Kemp has said “little to nothing” about the law, particularly on its enforcement, “despite its central place in his 2019 campaign.”

Huffington Post: Georgia Says A Fetus Is A Person. The Implications Are Terrifying.

• Vesting fetuses with full legal rights would have unintended and unfair consequences for women like Jones, which prosecutors belatedly realized. But such consequences have been a goal of the anti-abortion movement for years. After this summer’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which ended nationwide abortion rights, these efforts could endanger any pregnant person in any state that enacts “fetal personhood” laws.

• The battle is playing out most dramatically in Georgia. Less than a month after the Supreme Court overturned Roe v. Wade in June, the state enacted one of the most extreme abortion restrictions in the country. House Bill 481, or the Living Infants Fairness and Equality (LIFE) Act, bans abortion after cardiac electrical activity can be detected, usually around six weeks ― a point at which most people don’t yet know they’re pregnant. While several states have even more extreme abortion restrictions, including banning abortion from the point of conception, Georgia’s includes a uniquely terrifying clause: It recognizes an embryo or fetus as a person after six weeks of pregnancy.

• The termination, or suspected termination, of a pregnancy after the six-week point could be considered murder under Georgia’s law. And although there is an exception for miscarriage in H.B. 481, abortion and miscarriage are medically indistinguishable. This means the law empowers officials to scrutinize, surveil and criminalize not only women seeking abortion care, but also women with wanted pregnancies.

• These fears are among the reasons why Georgia’s abortion ban set off intense criticism across the country when it was first introduced in 2019. “The State of Georgia … recognizes the benefits of providing full legal recognition to an unborn child above the minimum requirements of federal law,” the legislation reads. “It shall be the policy of the State of Georgia to recognize unborn children as natural persons.”

• Georgia Gov. Brian Kemp (R), a dedicated abortion opponent, signedthe bill into law in 2019, but it was immediately blocked in state court and later struck down by a federal court because it was unconstitutional under Roe.

• But now Roe is gone, and the six-week abortion ban, along with its fetal personhood clause, went into effect in July. Though there are federal and state court cases being litigated against the abortion ban, the personhood bill remains in effect with some potentially harrowing consequences for anyone with the capacity for pregnancy in the state.

• “This law is saying that the pregnancy you’re carrying after six weeks holds the same amount of value as you do,” said Dr. Nisha Verma, an Atlanta-based abortion provider and OB-GYN. “I’m not saying that pregnancy or fetuses don’t hold value … but I don’t believe that a pregnancy holds more value than the pregnant person. And that’s what these laws are saying.”

• By recognizing a six-week embryo as a fully formed human, H.B. 481 is a sharp departure from federal law and most state laws. Federal law allows punishment for violence against a pregnant person that harms a fetus, but there’s no federal law that grants embryos or fetuses legal protection independent of the pregnant person.

• Republican lawmakers did not outline how changing the legal definition of a person would impact the state’s civil and criminal codes ― creating a chilling effect where physicians and patients alike don’t know which of their actions may be considered illegal. And where state legislators were explicit in the fetal personhood clause, their choices were seemingly arbitrary and random, according to several experts who spoke with HuffPost. The law includes tax exemptions for a fetus, allows pregnant people to file for child support during pregnancy, and includes fetuses in the state population count.

• The six-week abortion ban does include narrow exceptions, including if the mother’s life or health is at risk, as well as exceptions for rape or incest if a police report is filed. The law also includes distinctions around when the state recognizes a fetus as a “natural person.” The fetal personhood clause defines an “unborn child” as “a member of the species Homo sapiens” who “is carried in the womb” after cardiac electrical activity can be detected. This means that personhood does not apply to embryos created through in vitro fertilization or to ectopic pregnancies, which are embryos that implant outside of the uterus. Ectopic pregnancies are not viable and are life-threatening to the pregnant person.

• The personhood clause also clarifies that a person cannot be prosecuted for the outcome of their pregnancy if it’s a miscarriage or stillbirth. But, medically, it’s impossible to distinguish an illegal abortion after six weeks from a natural miscarriage ― the medical term for which is “spontaneous abortion.” Between 10% and 20% of known pregnancies in the U.S. end in miscarriages, according to the Mayo Clinic. And the frequency of miscarriage ― defined as the unexpected end of a pregnancy before 20 weeks ― is likely a lot higher than that, since many women miscarry before they even know they’re pregnant.

• The Georgia law effectively opens up a Pandora’s box of surveillance and criminalization targeting anyone in the state who can become pregnant.

• “The state of Georgia is purporting to amend hundreds of criminal and civil provisions of Georgia law that include the term ‘person’ to encompass an in-utero embryo or fetus,” said Alice Wang, a staff attorney from the Center for Reproductive Rights and one of the litigators on the state-level case against the Georgia law.

• “It is unclear how the personhood provision might be applied, and this lack of clarity is by design,” Wang said. “It invites arbitrary and aggressive enforcement by prosecutors and creates a climate of fear and confusion.”

• For example, Georgia allows expectant mothers to claim fetuses as dependents. If a woman miscarries, is that setting her up for tax fraud? Georgia also counts embryos or fetuses past the six-week point as part of the population. If someone miscarries, what are the consequences of reporting inaccurate information to the government?

• And the list of questions only gets longer when the stakes are higher. If a pregnant woman legally travels out of state to get an abortion past six weeks, will she be arrested for conspiracy to commit murder on her return home? If she travels out of state to get a medication abortion and takes the second dose of abortion pills once back in Georgia, did she commit murder in the eyes of the state?

• What about the provision that allows child support payments for a fetus? Women are most likely to be murdered by abusive partners during pregnancy ― will this increase the incidence of lethal intimate partner violence if abusive fathers can’t pay? And if child support is allowed, can custody disputes begin when a fetus is still in the womb?

• The answers to many of these questions will ultimately be resolved by the Georgia officials responsible for carrying out the law.

• When HuffPost posed some of these questions to Kemp’s office, a spokesperson for the governor replied with a vague statement.

• “Working closely with the General Assembly, Gov. Kemp has made significant strides in policies that protect life at all stages ― from adoption and foster care reform, to combatting human trafficking and passing the heartbeat bill,” the spokesperson told HuffPost.

• The statement is similar to much of what Kemp has said on the abortion ban since it became law: little to nothing.

• The governor has seemed reticent to discuss specifics around the abortion ban, particularly enforcement, despite its central place in his 2019 campaign. And while frustrating, it makes sense: Pushing ever more aggressive anti-abortion policies is a winning strategy for Republicans running in crowded primary fields. But enforcing a fetal personhood law is completely different. Prosecuting women for their pregnancy outcomes, particularly those with wanted pregnancies, is not a winning strategy.

• Although Georgia is the first state to enact a fetal personhood law since Roe fell, it’s not the first state with a personhood law on the books. Fifteen states had some form of criminal fetal personhood laws in effect before Roe fell this summer. Many, like South Carolina’s and Alabama’s, center on drug use during pregnancy and have historically been weaponized against the most marginalized, including poor women and people of color. There were over 1,300 criminal fetal personhood cases nationally between 2006 and 2020, according to National Advocates for Pregnant Women.

• If fetal personhood and abortion bans become one and the same, there will inevitably be prosecutions for terminating pregnancies, experts told HuffPost.

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