Why Georgia's fetal personhood law is a 'Pandora's box' and a warning to the rest of the country
Governor Brian Kemp on Facebook.

Georgia's fetal personhood law, which was signed into law by Republican Governor Brian Kemp in 2019 and initially declared unconstitutional due to protections under Roe versus Wade, was the first in the nation to effect this past June after the United States Supreme Court struck down the half-century-old provision.

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 Huffington Post noted in a report on Thursday outlining the avalanche of legal chaos and "potentially harrowing consequences" that HB 481 has unleashed in the Peach State.

For example, "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 HB 481, abortion and miscarriage are medically indistinguishable," HuffPost explained. "This means the law empowers officials to scrutinize, surveil and criminalize not only women seeking abortion care, but also women with wanted pregnancies."

HB 481 "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," HuffPost pointed out. "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."

And while pregnant persons are not subject to criminal prosecutions for miscarriages or stillbirths, HuffPost stressed that "medically, it’s impossible to distinguish an illegal abortion after six weeks from a natural miscarriage ― the medical term for which is 'spontaneous abortion.'"

That ambiguity, the publication observed, "effectively opens up a Pandora’s box of surveillance and criminalization targeting anyone in the state who can become pregnant."

Serious questions have therefore emerged over the economic ramifications for women who, based on HB 481, now count as two people.

"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?" HuffPost posited.

"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?" HuffPost continued. "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?"

Experts that spoke to HuffPost expressed extreme concern over the implications for residents of Georgia.

HB 481 "is saying that the pregnancy you’re carrying after six weeks holds the same amount of value as you do," Atlanta-based OBGYN Doctor Nisha Verma told HuffPost. "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."

Alice Wang, a staff attorney from the Center for Reproductive Rights, stated that "it is unclear how the personhood provision might be applied, and this lack of clarity is by design" and that "it invites arbitrary and aggressive enforcement by prosecutors and creates a climate of fear and confusion.”

Consequently, the future of reproductive rights in Georgia – and indeed the rest of the country – may hinge on the outcome of the gubernatorial and Senate races in the November midterm elections. Incumbent Republican Governor Kemp, an outspoken abortion foe, is in a tight rematch with his 2018 opponent Stacey Abrams, a former speaker in the state's House of Representatives. The contest for the Senate – which could determine partisan control of the chamber – is between incumbent Democrat Reverend Raphael Warnock and GOP nominee Herschel Walker, an ex-football star whose campaign has been rocked by personal scandals and hypocrisy on the issue of abortion.

Walker, who claims to be pro-life and against abortion in all cases, was revealed to have paid for an abortion in 2009 for his then-girlfriend, with whom he fathered a child. Candidates rarely survive the unending barrage of bad news that shadows Walker. But these are not normal times. Walker's right-wing base has contorted itself to excuse his contradictory actions and his rhetoric. If Walker defeats Warnock, and the GOP retakes control of the Senate and the House of Representatives, the possibility of a national abortion ban – along with the erosion of other established civil liberties – becomes very real.

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