Could Georgia penalize women for abortions?

Unlike many state pro-life laws, Georgia’s 2019 heartbeat law protecting unborn babies from abortion does not explicitly exempt women who obtain abortions from liability. The legislation’s lead sponsor in the Georgia General Assembly told WORLD that lawmakers intentionally did not include that exception, but he added that other factors would prevent the legal system from actually convicting women under the law.

The law protecting babies from abortion once they have a detectable heartbeat came into the national spotlight in September when ProPublica published a pair of articles blaming the 2022 deaths of two Georgia women on the law. One of the women, Candi Miller, ordered abortion pills from the European seller Aid Access. According to family members, doctors had said her preexisting health conditions would make it dangerous for her to have another baby. After taking the abortion drugs, Miller experienced complications but didn’t seek medical attention and died at home. Family members told ProPublica she didn’t get help because she was afraid of going to jail for having an abortion.

Laws protecting babies from abortion in states including Texas, Tennessee, and Idaho include language explicitly exempting women from prosecution. In Texas, the law protecting babies throughout pregnancy says that it “may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted.” Other states use similar language.

But laws in some states, including Florida and Georgia, do not include that exception. In Georgia, the only exemption for pregnant women appears at the end of the law. “It shall be an affirmative defense to prosecution under this article if … [a] woman sought an abortion because she reasonably believed that an abortion was the only way to prevent a medical emergency,” it says. The punishment for someone convicted of a criminal abortion in Georgia is one to 10 years imprisonment.

On Sept. 30, a Georgia county judge ruled the state’s heartbeat law unconstitutional. Judge Robert McBurney did not reference Miller’s story, but he hinted in a footnote at critics’ concerns. “To be clear, both pregnant women and medical professionals can be criminally liable under this statutory scheme,” he wrote. “There is no limitation in [the law] that would prevent a zealous prosecutor from pursuing charges against the woman as a party to or co-conspirator in the crime that she helped her medical provider commit.”

Following an appeal from the Georgia attorney general, the state Supreme Court temporarily reinstated the law on Monday as litigation continues.

Georgia state Sen. Ed Setzler—the former state representative who sponsored the heartbeat bill in the General Assembly—told WORLD the omission of a broader exemption for mothers was intentional. He said he and fellow lawmakers believed giving the mother no accountability in the death of her unborn child would be inconsistent with the bill’s purpose of protecting babies. Setzler said they didn’t want to “send a mixed message” that “the value of the child is zero,” which is why the legislation remained silent on the issue.

But Setzler said he and fellow lawmakers recognized other factors would prevent women from being convicted under the law.

One of those is the precedent in Georgia case law of women not being convicted for abortions. In 1998, the Court of Appeals of Georgia ruled in the case Hillman v. State that Jacquelyn Aretha Hillman could not be prosecuted for violating Georgia’s criminal abortion statute even though she allegedly used a handgun to shoot herself in the abdomen for the purpose of killing her unborn child in the eighth month of pregnancy. In its opinion, the court cited previous Georgia court rulings that said pregnant women cannot be indicted for aborting their own babies. It noted that the statute is “written in the third person, clearly indicating that at least two actors must be involved.”

In 2015, a county district attorney dropped the murder charge a woman originally faced after she killed her unborn baby using an abortive drug she ordered online. In dismissing that warrant, the district attorney said his office conducted “thorough legal research” into Georgia law and concluded that “criminal prosecution of a pregnant woman for her own actions against her unborn child does not seem permitted,” according to The Washington Post.

Similar case law in Florida, another state without explicit exemptions for mothers, also sets a precedent that women cannot be held criminally liable for causing their babies’ deaths. In a 2023 interview with WORLD on the subject of Florida’s law, John Stemberger, the former president of Florida Family Policy Council (now called Florida Family Voice) also noted that the severity of criminal penalties requires explicit language in a law making the behavior criminal. “You cannot imply criminal penalties,” he said.

In Candi Miller’s case, Setzler said she likely would have had protection against a conviction thanks to the actual language of the heartbeat law. According to ProPublica, Miller had diabetes, hypertension, and lupus—an autoimmune disease that brings increased risks for mothers and babies during pregnancy.

“If she believed that being pregnant could cause her serious harm, we specifically wrote into the statute a provision that makes her not criminally responsible,” Setzler said, referring to the affirmative defense for women who seek abortions because they believed it was the only way to prevent a medical emergency.

He noted that ordering abortion pills “illegally on the black market” could open a mother up to liability, but he added that any guilty verdict under the abortion law requires proof “beyond any reasonable doubt” that the woman did not abort her baby to avoid a medical emergency. The state’s case law is yet another layer of protection on top of that reality.

“It is actionably going to be true that no woman will be criminally convicted for her actions [under] the heartbeat bill,” Setzler said.