Georgia abortion regulation’s ‘personhood’ clause debated within the wake of abortion ruling

The US Supreme Court may have cleared the way for Georgia’s ban on most abortions after about six weeks, but the debate over the state law’s far-reaching “personhood” provisions remains unsettled.

The state’s anti-abortion law was ruled unconstitutional by a federal court judge in 2020, and the state’s appeal of that decision was paused last year while the Supreme Court took up Mississippi’s 15-week abortion ban. Georgia’s law has never taken effect.

The Supreme Court’s decision overturning Roe v. Wade left it to the states to determine whether to limit access to abortion. In Georgia, the US Court of Appeals for the 11th Circuit immediately ordered both sides of the case to file briefs on what the Supreme Court’s ruling means for the state’s appeal.

The state argued the effect of Dobbs v. Jackson Women’s Health Organization is, for the most part, simple.

“The answer to the Court’s question could hardly be clearer: after Dobbs, Plaintiffs have no case,” Stephen J. Petrany, solicitor general for the Georgia Attorney General’s Office, wrote in the state’s brief filed late Friday.

The state is asking the 11th Circuit Court of Appeals to reverse the lower court’s ruling that the law is unconstitutional and let it take effect.

The American Civil Liberties Union, which is representing the plaintiffs, continues to argue that the law’s so-called personhood language is too vague.

Georgia’s law does more than ban most abortions once fetal cardiac activity is detected, which is usually at about six weeks and before many women know they are pregnant. The measure also lets expecting parents claim their unborn child as a dependent, requires the father to pay child support while their offspring is still in utero, and deems an unborn child to be a “natural person.”

The ACLU attorneys argue in their brief that this personhood definition amounts to government interference that hinders physicians and clinics as they try to care for pregnant patients, and it infringes on a person’s “fundamental right to procreate.”

“By threatening reproductive healthcare providers with criminal penalties for providing routine obstetrical and gynecological care, such as amniocentesis and miscarriage care, and thus chilling and delaying needed diagnostic and treatment services for pregnant people, the Personhood Definition forces those who choose to procreate to incur needless medical risk,” burdening their freedom to make their own decisions on childbearing, the ACLU attorneys wrote.

The ACLU is requesting the court to continue to block the personhood definition, arguing stopping this element of the law “remains valid and necessary to protect the constitutional rights of Plaintiffs and their physicians, other staff, members, and patients.”

The state seems to concede some ground on the personhood language, specifically the inclusion of unborn children in the definition of a “natural person.” The law dictates that, as a natural person, an unborn child should be included in population counts.

“The LIFE Act would thus remain almost entirely valid even if, somehow, the definition of ‘natural person’ were not,” Petrany wrote.

In its July 2020 ruling, the district court found fault with the personhood provision in the law, arguing that it could lead to inconsistent and arbitrary enforcement.

If the section became law, Judge Steve Jones reasoned, a pregnant woman with an eating disorder could be found guilty of childty and health care providers could be cruelly held liable for failing to report a pregnant patient living with an abusive partner.

“The list goes on. And these are not potential applications, as the State Defendants attempt to characterize them,” the decision reads. “These would be lawful applications of existing criminal statutes. The only undefined variable is prosecutorial discretion: under which of these amended statutes will the State decide to bring charges? Such uncertainty provides precisely the kind of opportunity for ‘policemen, prosecutors, and juries to pursue their personal predilections.’”

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