“The larger issues with H.B. 481, such as the constitutionality of the timeframe for an abortion, the extent to which the law imposes an undue burden on a mother, or the attribution of personhood to an unborn fetus, have regrettably been conflated with false claims about mothers receiving abortions being prosecuted under Georgia law.”
The pulse of Georgia’s new abortion law, House Bill 481, beats steady despite lamentations from its opponents. Headlines have raised concerns about whether women face prosecution after obtaining an abortion in Georgia, now that the state’s Assembly has recognized natural personhood for the unborn. This dispute, however, reveals distresses that extend far beyond the passions of the legislation. It invites questions about the shirking of prosecutorial responsibility and the vapidity of legal pundits’ narrow-minded discourse.
Politics has no place in prosecutorial decision-making. In fact, as delineated in a past Merion West column, the presence of political bias in prosecutors’ offices generates significant Constitutional concerns. Prosecutors are required by their oaths, professional standards, and statutes to enforce the law. Commentators have noted that vigilantly protecting the innocent is as much a constitutional mandate for prosecutors as is the requirement to refrain from seeking false convictions.
And prosecutors or activists who want to take issue with H.B. 481 should have the fortitude to author an article and subject their thoughts to intellectual and academic scrutiny. Hiding behind reporters and sound bites only serves to undermine the credibility of any position they might choose to espouse and does the very public they claim to represent a tremendous disservice
Instead of focusing on boycotts and hyperbole, Georgia civil rights and privacy advocates should, accordingly, be equally concerned that some of its elected prosecutors have vocalized their abject refusal to enforce a law that clearly protects a distinct class of person who, before H.B. 481, were politically powerless: the living unborn. Worse yet, like the protests to H.B. 481, these statements by prosecutors do not show an understanding of established law.
Acting Cobb County District Attorney John Melvin, who penned the courageous op-ed on H.B. 481—and others who have adhered to prosecutorial responsibilities—are often left to engage with the law alone, while the larger issues get caught up in the political fog of war fought on the front lines of the justice system. All the while, a crucial tension has been brewing among Georgia prosecutors: whether to enforce H.B. 481 or not to enforce it. That is a question, but it is not the only question.
The first is: “Are the critics of H.B. 481 justified in their attacks on it?” Famed Fuller E. Callaway Chair of Law Emeritus Ronald L. Carlson of the University of Georgia School of Law, whose scholarship, experience, and achievements are rightfully renowned, recently dismantled the hysteria over H.B. 481 in a thoughtful Merion West essay. Significantly, not one opponent, protester, or refusing prosecutor has put pen to paper to address—much less refute—Prof. Carlson’s sagacious insights. Apparently, the naysayers imposed an intellectual boycott on themselves.
In an eerie parallel, H.B. 481 advocates, most notably those from the Georgia General Assembly and pro-life organizations, have not publicly endorsed Prof. Carlson’s effort, nor have they voiced appreciation to Acting District Attorney Melvin’s public stance in their favor. So much for their dedication to life, much less personhood, it seems.
As tensions between prosecutors who will enforce H.B. 481 and those who will not grow more intense, Georgia appellate cases have drawn very clear lines regarding a prosecution for abortion under Georgia’s criminal abortion statute. Examining this precedent demonstrates that the central tenant of H.B. 481’s opposition has no basis in law.
As Prof. Carlson delineates, the answer as to whether a pregnant mother faces a prosecution for an abortion is clear: an emphatic “No.” In fact, Georgia Appellate Court Judge Eldridge made it clear that a, “pregnant woman upon whom the abortion procedure was performed cannot be indicted” under the Georgia criminal abortion statute. See Hillman v. State, 232 Ga. App. 741 (Ga. Ct. App. 1998).
Furthermore, it is necessary to remember that Hillman, an 18-year old single parent who was eight months pregnant, allegedly shot herself in the abdomen intending to cause an abortion. Even in those extreme circumstances, Judge Eldridge clearly foresaw the “parade of horribles” and prevented it. Judge Eldridge’s approach to principles of statutory interpretation remains a bedrock for jurists now engaged in a reasoned dialogue concerning women’s rights, the rights of the unborn, and the interests of their respective political constituencies.
Hillman remains good law and would apply evenly to Georgia’s new abortion law. Therefore, if an elected prosecutor’s office has vocalized its refusal to enforce H.B. 481 for reasons such that its enforcement would lead to prosecutions of pregnant mothers, then it is severely misinformed and should seek clarity from prosecutor service organizations like the Prosecuting Attorneys Council of Georgia or Georgia Attorney General Chris Carr.
Furthermore, a challenge to H.B. 481 on these grounds faces an uphill battle. Not only has Hillman remained precedential in Georgia; federal courts and other states have relied on Hillman authoritatively—since Hillman has been directly advanced in at least eight subsequent cases in Georgia, federal, and other state jurisdictions. Any argument against Hillman’s central premise—that women cannot be prosecuted under Georgia’s illegal abortion statute—is void in its inception. The following cases all follow Hillman on this issue:
1) Georgia appellate cases
- a) Boggs v. State, 581 S.E.2d 722 (Ga. Ct. App. 2003)
- b) Carswell v. State, 555 S.E.2d 124 (Ga. Ct. App. 2001)
- c) Joiner v. State, 522 S.E.2d 25 (Ga. Ct. App. 1999)
- d) Izer v. State, 511 S.E.2d 625 (Ga. Ct. App. 1999)
2) Other appellate cases
- a) McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012)
- b) B.S. v. State, 966 N.E.2d 619 (Ind. App. 2012)
- c) Shuai v. State, No. 49A02-1106-CR-486 (Ind. App. Feb. 8, 2012)
- d) State v. Deborah J.Z, 596 N.W.2d 490 (Wis. Ct. App. 1999)
The larger issues with H.B. 481, such as the constitutionality of the timeframe for an abortion, the extent to which the law imposes an undue burden on a mother, or the attribution of personhood to an unborn fetus, have regrettably been conflated with false claims about mothers receiving abortions being prosecuted under Georgia law. While these more subtle considerations are interwoven with this tension between the camps for and against Georgia’s new abortion law, these arguments never address what should be the starting point to a productive conversation about H.B. 481—its text and controlling law.
While the dialogue over H.B. 481 has been ongoing and often misguided as these important larger issues move closer to a day in court, prosecutors must remember that saying “we will not enforce a law” (or any other phrases to that effect without sufficient legal backing) furthers the divide—and leads to the impression that prosecutions are politically motivated. This is particularly true when so little legal research is uncovering the fallacy behind the central tenet of the backlash against H.B. 481; all the while, the publicly available scholarship underscores the truth of the opposite position. Thus, these prosecutors would do better to focus on the law and leave such imaginative processes reserved for the Georgia General Assembly and protesters.
And prosecutors or activists who want to take issue with H.B. 481 should have the fortitude to author an article and subject their thoughts to intellectual and academic scrutiny. Hiding behind reporters and sound bites only serves to undermine the credibility of any position they might choose to espouse and does the very public they claim to represent a tremendous disservice.
Bill Black is a Georgia attorney who graduated with honors from Atlanta’s John Marshall Law School where he was Editor-in-Chief of the John Marshall Law Journal. In addition, Mr. Black is concluding his LL.M. degree at Georgetown University Law Center and is a veteran of the United States Air Force. Among other topics, Mr. Black has previously published on the issue of improving memorials and recognition for African American veterans of World War I.