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Last year, we saw a ton of legislation related to abortion. This year, we don't expect it will be much different! This week, a closer look at Georgia HB1, the Georgia Pro-Birth Accountability Act. This legislation was proposed by Representative Dar'shun Kendrick this year, after the LIFE Act was made law following a multi-year legal battle in 2022. Let's take a look.
Brief Overview
A little Context around Six Week Abortion Bans
Leading up to the overturn of Roe, we saw many states propose and pass six week abortion bans. The six week mark is a common trend in abortion legislation as it is believed to be when medical professionals can "detect cardiac activity", simplified by many as a heartbeat. Many health professionals say labeling this activity a "heartbeat" is misleading. According to Dr. Ian Fraser Golding, a pediatric and fetal cardiologist, embryos at six weeks develop a tube that generates sporadic electrical impulses. These impulses then, after more time, coordinate into rhythmic pulses which many recognize as a "heartbeat".
Another issue people have with six week bans is how the time period is calculated. Because pregnancy is measured from the first day of a someone's last period (aka when they are 'pre-pregnant' every month) this "six weeks pregnant" is in reality closer to four weeks of actual fetal development because of when ovulation and conception occur in a cycle. This article "The Absurd Pregnancy Math behind the ‘Six-Week’ Abortion Ban" by Michelle Rodrigues on the Scientific American, speaks to how these bans give pregnant people just one week to realistically find out their pregnant and make a decision.
Where is Georgia with the Overturn of Roe v. Wade?
Last year, we took a closer look at abortion "trigger laws" to understand what could happen depending on the outcome of Dobbs v. Jackson Women's Health Organization. As we now know, the US Supreme Court decided to overturn Roe v. Wade. In 2019, Governor Brian Kemp signed the LIFE Act into law, which prohibits most abortions after six weeks of pregnancy. This bill was not, however, immediately labeled a "trigger law" for the state.
What Happened with the LIFE Act?
Before Roe was Overturned
The LIFE Act has had a tumultuous journey of becoming law in Georgia. At a high level, the Living Infants Fairness and Equality (LIFE) Act prohibits abortive care once "cardiac activity is detectable in an embryo" (typically around that six week mark). The bill also expanded the definition of a "natural person" within the state to include "an unborn child with a detectable human heartbeat". Under the bill, 'detectable human heartbeat' means embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the heart within the gestational sac and 'unborn child' means a member of the species Homo sapiens at any stage of development who is carried in the womb." The bill did allow exceptions to the six week ban if a woman faces serious harm or death in pregnancy. It also allowed for exceptions in cases of rape or incest as long as a police report was filed.
Governor Brian Kemp signed the LIFE Act into law in 2019, but it did not immediately go into effect due to Roe still being the law of the land. Previously, Georgia had a law on the books that allowed abortions until at least 20 weeks of pregnancy.
The bill was held up in court from 2019 to 2022 while the state waited for a decision on Roe. A federal judge did block the bill in 2020, but after this, an appeals court issued an injunction and delayed their final decision until the the ruling was released related to Dobbs v. Jackson Women’s Health Organization. After the Dobbs ruling was released, a federal appeals court panel allowed the LIFE Act to go into effect. Chief Judge William H. Pryor Jr., who was part of the three-judge panel, wrote in the ruling that the court overturning Roe v. Wade with Dobbs “makes clear that no right to abortion exists under the Constitution, so Georgia may prohibit them.” But, this was not the end of the legal drama for the LIFE Act.
After Roe was Overturned
After the LIFE Act went into effect with Dobbs, it went right back to court. On November 15, 2022, the Superior Court of Fulton County found that the LIFE Act violated Georgia’s Constitution. In this decision, plaintiffs in Sistersong Women of Color Reproductive Justice Collective v. State of Georgia argued the LIFE Act was void ab initio (from the beginning). Their argument was because the LIFE Act was enacted when Roe precluded the Act's restrictions on abortion access, the LIFE Act violated Georgia’s constitutional right to liberty, privacy, and/or equal protection. For a deeper look at this from Dr. Anthony Michael Kreis, an assistant professor of law at Georgia State University College of Law, check out this article.
The Superior Court found two sections of the LIFE Act invalid. The invalid first provision was O.C.G.A. § 16-12-141(b), which prohibited any abortion from taking place after a fetus had a detectable heartbeat. The second invalid provision O.C.G.A. § 31-9B-3(a), mandated physician reporting of abortive procedures to the Department of Public Health with a clear indication of the applicable statutory exception (e.g., medical emergency, etc.) to the near abortion ban.
But, we're not done yet! On November 23, 2022, just a week later, the Georgia Supreme Court enjoined (issued an injunction against) the lower court’s decision making the LIFE Act unenforceable, which then reinstated the prohibitions on abortion in Georgia codified by the LIFE Act. So, the LIFE Act is current law in Georgia and the six week abortion ban is in effect.
What is the Pro-Birth Accountability Act?
The Georgia Pro-Birth Accountability Act (HB1), as introduced, would make the state of Georgia financially responsible for all pregnancies in which abortion care was desired, but unattainable because of the enactment of the LIFE Act.
The bill states: "To obtain compensation from the state, a woman shall file an affidavit with Department of Human Services indicating that, but for a law prohibiting an abortion upon a detectable heartbeat of an embryo or fetus, she would have chosen to terminate the pregnancy and not give birth to the child."
Under the bill, pregnant people would be compensated by the state for medical care during and after pregnancy. They would be eligible for any child-related federal or state income tax credits as well as public assistance programs like Temporary Assistance for Needy Families (TANF), Special Supplemental Nutrition Program (SNAP) for Women, Infants and Children (WIC), and others. The bill also requires the state to pay for burial expenses, should a pregnant person die in childbirth. If any disability results from the pregnancy, the state would also have to provide support.
The bill outlines postpartum expresnes to be covered by the state. Included is health, dental, and vision insurance for the child until they are 18, along with "child support" to an unmarried woman if the father is unable to provide support or is they are unknown. Finally, the state would have to fund a savings trust to support qualified higher education for the child.
South Carolina introduced a similar bill in their 2023 session, sponsored by State Senator Mia McLeod. Unlike the South Carolina bill, the Georgia bill would not require a lawsuit to be filed in order for someone to receive compensation in cases of death and miscarriage in Georgia.
Although the bill will likely not receive a hearing or pass in the Republican controlled state House and Senate, Kendrick told 11Alive that this is a serious bill. Kendrick told them "This is an actual, serious bill, and I don’t understand why every conservative hasn’t ran to sign it. If you claim to be pro-life and pro-family, I’m giving you exactly what you are asking for, which is to support our families (and) support our unborn children."
Conclusion
I find this legislation to be incredibly interesting and thought provoking. There definitely needs to be a conversation around what support needs to be put in place for people forced to give birth to children they would have otherwise sought an abortion for if not for their state's abortion ban. What do you think about this? Too far? Not far enough?
Cover Photo by Josh Appel on Unsplash
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