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A Reasoned Approach to the Abortion Wars

(Bob Andres/Atlanta Journal-Constitution via AP)

Nobody can say with confidence exactly what a court will do. What is visible from our analysis is that it is likely not a slam dunk either way.”

The uproar over Georgia’s new abortion law accelerates daily, with protests as well as threats from Hollywood to boycott the state’s movie industry.  Most of the critics harbor the belief that the law is unconstitutional, and they are not hesitant to publicly proclaim that message. This raises an essential question.  When the validity of the law reaches a Georgia courtroom, how will a Peach State judge rule?

Constitutional Considerations

Factors a judge will consider are numerous.  A prominent one is the extent to which any abortion law provides a reasonable set of defenses to potential prosecution.  A close analysis of Georgia law reflects a number of responses which can be made to a criminal abortion charge.

  • Charges against the mother.  These are not allowed.  The law targets abortion providers.  A woman cannot be successfully prosecuted under the law.  The Georgia position was staked out in a prominent Court of Appeals decision which held that “The General Assembly has refused to criminalize a pregnant woman’s acts in securing an illegal abortion.”  This decision was announced several years ago, but it has never been reversed. It remains the controlling law today.

In an excellent Merion West article, a Metro Atlanta area District Attorney identifies some of the rhetoric employed to attack the new law.  D.A. John Melvin points to one publication’s headline which proclaims that “women who terminate their pregnancies would receive life in prison.”  Prosecutor Melvin correctly concludes that nowhere does HB481 (the new Georgia law) impose liability on a woman who obtains an abortion.

  • Rape and incest.  Some of the new abortion statutes do not permit abortions for cases of rape and incest.  Louisiana, for example does not make their approach more lenient by allowing for abortions when the pregnancy results from rape or incest.  Missouri’s new abortion law also contains no exception for such cases. Georgia is not this camp. HB481 contains a clear escape from prosecution for providers who deliver an abortion to a woman impregnated by an act of rape.  An abortion is authorized when a police report has been filed alleging the offense of rape or incest.
  • Medical accidents and dead children.  Another defense to prosecution arises when a physician or nurse provides care for a pregnant woman which results in an accidental death of an unborn child.  Physicians are also protected when removing a dead unborn child caused by a spontaneous abortion. The definition of a spontaneous abortion includes a miscarriage.  
  • Medical emergencies and medical futility.  The list of escapes from an abortion prosecution includes an emergency clause.  It provides immunity from prosecution for helping a woman who seeks an abortion because she reasonably believes an abortion is required by a medical emergency.  Another escape from prosecution occurs when an unborn child is deemed to be medically futile, meaning the child has a condition which is incompatible with sustaining life after birth.

Are the Exceptions Enough?

As the foregoing list suggests, the Georgia law is laced with exceptions to prosecution.  Foremost among those is the immunity of a woman, protecting her from criminal punishment. In the coming constitutional battle, proponents of the Georgia law will point to a “carefully crafted lineup of potential escapes from an unduly aggressive prosecution.”  Those who believe in a more hard line approach, embracing a position of no abortions ever, under any circumstances, are likely less than pleased with the extensiveness of this list. Those of an opposite view, citizens opposing HB481, may dismiss the list of exceptions as unduly short.

A Judge’s Final Say

Above the passions of the moment, a judge will make a determination of whether HB481 is legal. Primary consideration will be given to the flexibility factor. That is, does the list of exceptions to prosecution help to provide a reasonable balance between a woman’s right to free choice versus the need to enforce a legislative fiat? As noted, proponents of the law will urge that the exceptions assist in providing that balance.

Will the Georgia law pass constitutional muster? Nobody can say with confidence exactly what a court will do. What is visible from our analysis is that it is likely not a slam dunk either way. Both those who attack the new law as well as those who support it are passionate in their arguments. The calm and unemotional judgment of an experienced jurist will be required to reach a reasoned conclusion.

Ron Carlson serves as Fuller E. Callaway Chair of Law Emeritus of the University of the Georgia School of Law and is the author of seventeen (17) books on evidence, trial practice, and criminal procedure. His coauthored treatise, Carlson on Evidence (with Mike Carlson), has been cited authoritatively in over 40 separate Georgia appellate court decisions. The views expressed in this article are those of Professor Carlson and are not those of any institution or association.

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Wally Marchant
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Wally Marchant

Professor Carlson I read your article with much interest. New laws such as Georgia’s heart beat law (HB 481) need careful constitutional analysis by professional jurist(s) who know the Georgia law. I agree with your analysis of the situation and hope this law will be reviewed and analyzed based on current Georgia law instead of the current emotions in Georgia. Since the USSC in recent years seem to have “weakened” the intent of the doctrine of stare decisis via several rulings, I hope you can discuss the repeal of Roe should HB 481 make it to the highest court in… Read more »