‘Crushing News’: Appeals Court Greenlights Georgia’s 6-Week Abortion Ban

Yves here. Unusually, an article means to rouse (well-deserved) ire, this Common Dreams piece appears to assume that its readers are fully up to speed on the draconian Georgia abortion law, H.B.481. Not only does it set an impossibly tight window for getting a legal abortion (as in before many women would realize they were pregnant) but as the the article below does usefully explain, uses a bogus cutoff standard of a fetal heartbeat, when the early-in-first-trimester electrical signals claimed to be a heartbeat typically can’t be given the state of development.

What the article skips over are the draconian punishments for women who obtain abortions for fetuses deemed to have heartbeats. In Alabama, it’s MDs who are sanctioned for giving deemed-to-be-illegal abortions (allowed only in cases of endangerment of the mother, rape, or incest). In Georgia, the mother is subject to the death penalty for getting an abortions. From Slate in 2019:

On Tuesday, Georgia Republican Gov. Brian Kemp signed a “fetal heartbeat” bill that seeks to outlaw abortion after about six weeks. The measure, HB 481, is the most extreme abortion ban in the country—not just because it would impose severe limitations on women’s reproductive rights, but also because it would subject women who get illegal abortions to life imprisonment and the death penalty.

The primary purpose of HB 481 is to prohibit doctors from terminating any pregnancy after they can detect “embryonic or fetal cardiac activity,” which typically occurs at six weeks’ gestation. But the bill does far more than that. In one sweeping provision, it declares that “unborn children are a class of living, distinct person” that deserves “full legal recognition.” Thus, Georgia law must “recognize unborn children as natural persons”—not just for the purposes of abortion, but as a legal rule….

And a woman who miscarries because of her own conduct—say, using drugs while pregnant—would be liable for second-degree murder, punishable by 10 to 30 years’ imprisonment. Prosecutors may interrogate women who miscarry to determine whether they can be held responsible; if they find evidence of culpability, they may charge, detain, and try these women for the death of their fetuses.

Slate also points out that the sponsors of this law haven’t thought things through:

This radical revision of Georgia law is quite deliberate: The bill confirms that fetuses “shall be included in population based determinations” from now on, because they are legally humans, and residents of the state. But it is not clear whether the bill’s drafters contemplated the more dramatic consequences of granting legal personhood to fetuses. For instance, as Georgia appellate attorney Andrew Fleischman has pointed out, the moment this bill takes effect on Jan. 1, 2020, the state will be illegally holding thousands of citizens in jail without bond. That’s because, under HB 481, pregnant inmates’ fetuses have independent rights—including the right to due process. Can a juvenile attorney represent an inmate’s fetus and demand its release? If not, why? It is an egregious due process violation to punish one human for the crimes of another. If an inmate’s fetus is a human, how can Georgia lawfully detain it for a crime it did not commit?

Finally, what bothers me is that despite the considerable upset and concern about these retrograde laws, I don’t see any serious discussion, let alone evidence of action, about creating an underground railroad for women who want abortions. For instance, I see the Planned Parenthood pledge of the “We’re here to help” sort not just as disingenuous but actively putting women at risk.  If a woman in Georgia leaves the state to have an abortion and returns to Georgia, she is subject to prosecution for murder in Georgia., particularly if she left fingerprints, like buying a pregnancy test. See NoLo:

Usually, any state in which an essential part of a crime has been committed can prosecute the offender. That means that authorities in each affected state can prosecute a crime that stretches from one territory to another. The double jeopardy prohibition doesn’t apply to separate “sovereigns,” meaning that this kind of multiple prosecution doesn’t run afoul of the Constitution. In fact, it’s at least theoretically possible that multiple states and the federal government could prosecute a defendant for a single course of conduct.

And what happens when jealous boyfriends accuse their exes of having gotten pregnant by them, whether or not that happened?

I see a dearth of practical advice that is sufficiently cognizant of the legal and surveillance exposures: How can pregnant women communicate safely? Get transportation out of state? And if need be, get help in moving permanently to a state that is less hostile to women? Women and men who support abortion should be coming up with methods to help these women navigate so their actions (information gathering and movement) will be well-hidden in a flow of non-abortion-related activity.

I’m appalled not only by the false pretenses of concern by bourgeois feminists, but also the lack of any self-reflection or self-recrimination for how their complacency meant their was no meaningful resistance as the right, over fifty years, strategized and campaigned relentlessly to achieve their goal.

By Brett Wilkins, a staff writer at Common Dreams. Originally published at Common Dreams

Abortion rights defenders on Wednesday were down but determined after a federal appeals court lifted an injunction on Georgia’s six-week abortion ban, allowing the draconian law to take immediate effect.

Writing for a three-judge panel of the 11th Circuit Court of Appeals, Judge William Pryor saidthat the U.S. Supreme Court’s recent Dobbs v. Jackson Women’s Health Organizationruling voidingnearly 50 years of constitutional abortion rights “makes clear that no right to abortion exists under the Constitution, so Georgia may prohibit them.”

Pryor—a George W. Bush appointee who once called Roe v. Wade“the worst abomination in the history of constitutional law”—added that “it is hard to see any vagueness” in H.B. 481, the 2019 Georgia anti-choice law that “defines a natural person to include unborn humans in the womb at any stage of development.”

While Republican Georgia Gov. Brian Kemp said he was “overjoyed” by the ruling, state Sen. Michelle Au (D-48), who is also a physician, tweeted, “What this means is that in Georgia, patients sitting in a waiting room RIGHT NOW, waiting for abortion care that was legal just this morning when they arrived, now have lost their right to that medical care and control over their own bodies.”

“Just like that,” she added. “Gone.”

The Atlanta Journal-Constitution reports:

Georgia’s new law is different from other states’ “heartbeat” statutes because it includes so-called personhood provisions, where rights are extended to an embryo once fetal cardiac activity can be detected. Parents would be able to claim a fetus, once a heartbeat is detected, on their state income taxes as a dependent, and the measure would also require state officials to count an unborn child toward Georgia’s population. Mothers can also file for child support once cardiac activity is detected.

Experts have noted that fetal “heartbeat” laws are inherently flawed, as what’s being detected in a six-week-old fetus is little more than cells and electrical activity.

Earlier this month, a federal judge blocked enforcement of Arizona’s so-called “personhood” law.

The implementation of Georgia’s six-week ban comes as an effort to codify reproductive rights nationwide via the House-approved Women’s Health Protection Act has stalled amid opposition from Senate Republicans and right-wing Democrat Joe Manchin of West Virginia.

Planned Parenthood Southeast vice president of external affairs Amy Kennedy saidi n a statement that Wednesday’s ruling is “an affront to our personal rights and goes against the will of the vast majority of Georgians who believe in the bodily autonomy of all in our state.”

“The people have just been robbed of their ability to make the decisions that are best for themselves, their lives, and their futures,” Kennedy continued. “No matter what the courts say, people deserve access to abortion—and Planned Parenthood is here to help you get the care you need. We remain committed to helping Georgians access abortion care, and our doors are open for nonjudgmental information, resources, and financial and logistical support.”

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  1. fringe element

    I’m in Atlanta, so this could not be more personal. Looks like I will be spending time this weekend talking to friends who will be impacted by this. I will find out what they plan to do to protect vulnerable family members and figure out how I can help.

    We may be able to replace Brian Kemp with Stacey Abrams in the governor’s office. Sending donations to Abrams’ campaign would be one constructive thing to do to push back against this monstrous law.

    1. Yves Smith Post author

      I am sorry you feel the impact, but it is gratifying that you will be trying to take concrete action to help women who might, as they used to say in the old days, “be in trouble”.

  2. The Rev Kev

    You just know that it can get worse. What if Georgia arrests a woman returning from another State after having a legal abortion and not only charges her with murder but also for kidnapping that new ‘life’ out of the State.

    1. drumlin woodchuckles

      Here is how that part of the probortion community which believes in creating an Underground Abortion Railroad to the Probortion Free States for runaway womanslaves from the Antibortion Slave States can combine their Underground Abortion Railroad concept with helping drive a steady brain-drain from the Antibortion Slave States to the Probortion Free States.

      Raise and spend enough money from enough donors to create a long-term shelter and re-settlement assistance infrastructure for every runaway womanslave who reaches a Probortion Free State for a legal abortion so she doesn’t have to go back to legal persecution in the Antibortion Slave State she came from.
      Help her to get legal residency, work, home, etc. in the Probortion Free State she fled to so she can stay there and become a legal resident and State Citizen there and lend her strength to the Probortion forces already in that Probortion Free State to help keep that Free State free.

      And if such women would be leaving behind husbands, children, etc.; help the husbands, children, etc. join her in the Free State she fled to so they can be re-united in the Free State of her flight-to-freedom choosing.

  3. orlbucfan

    And, what pray tell, happens to that new human life once it’s born? What is it is unwanted, abandoned, thrown head first into a dumpster, or a body of water and drowns? Y’know, the religious yahoos either shut up or stay quiet when these questions hit them.

    1. anon y'mouse

      maybe one of the goals is to bring back baby mill orphanages like those operated in the 20s-40s of last century?

      after all, paying a poor person to carry a child for you is becoming en vogue among the rich. the truly rich will have designer made (au couture?) babies done up in a lab, the next tier down pays someone to carry a fertilized egg of their choosing, and so on and so forth down the list of cost/desirability options. and this can be presented to underprivileged women as a “good thing, giving the child a good home and you peace of mind as you move on in your life”.

      there are horror stories lying around about how poor women were forced to give up their children to “orphanages” that would hold the children in hock until the woman could pay the back expenses to release them, if they ever could. meanwhile, the child has been adopted by a wealthy couple. there is a famous case in Oregon which only received coverage because the wealthy family did not know at the time of adoption that the child had developmental disabilities, and tried to “return” the defective kid to the orphanage. the mother, who only had her children taken by this orphanage because her husband abused her and she landed in the hospital and lost her job, could never reclaim the kids in time because she didn’t have the cash. she moved out of state and on with her life, never telling her eventual new family about the lost children and the first abusive marriage.

      there are much bigger things on the hook with this whole move to make women enslaved to their reproductive organs and thus their sexual partners (aside from perhaps driving women out of the workplace again and back into the kitchen, which is no small matter in a world of diminishing “jawbs” available). there are whole industries possible here. children have been stolen from poor people time and again in Anglo-western culture, in a systemic and culturally/economically and politically “assisted” wave of thousands (not an individual anomaly of greedy people acting opportunistically). we should be ready for another wave of that.


      1. super extra

        > aside from perhaps driving women out of the workplace again and back into the kitchen, which is no small matter in a world of diminishing “jawbs” available

        This is what I assume to be the most coherent ‘why’ if there is a big strategy behind how far they will go with this, assuming it is not simply a red meat issue for a base they’ve cultivated and a network they have fully built out with lawyers, churches and “non-profit organizations”. Then there are all the work-related aspects around it, like lower pay for women, dress codes for women, things women can and cannot do while they are pregnant, then while they are married, etc.

    2. lentil

      So you’re saying, if women don’t have access to abortion, then they will just commit infanticide? False either/or, and not a sound basis for law. Like saying, if men don’t have access to sex, then they’ll just go around raping everyone, so — we should legalize prostitution? and have Medicaid cover it!
      As for the “religious yahoos”, they think both abortion and infanticide are murder, so good luck getting them to shut up either way.

      1. Yves Smith Post author

        We should legalize prostitution, so I don’t see what your issue is. Legal and regulated sex work will lower the rate of STDs. Countries with legalized prostitution require sex workers to be tested regularly for STDs and to obtain treatment when needed. And you object to STDs being treated and covered by insurance? Seriously? When STDs are a public health risk?

        And yes, infanticide is a regular feature when babies are not wanted. Even Greek myths feature babies being “exposed” to die. See: https://en.wikipedia.org/wiki/Infant_exposure.

        And see here: “Infanticide was seen as the most common form of murder in the 17th century.” The paper continues to describe that even after foundling hospitals were established, it was still seen as widespread:


        1. Vermont farmer's wife

          Neither Classical Greece nor 17th century Europe had effective and safe contraception widely available. Thankfully, now we do. Its consistent use is still the best available method of reducing the necessity of abortion other than abstinence. Imagining that the conditions that led to infant exposure or baby mills will return to 21st century America – or Europe – is really a stretch.

          As for laws restricting contraception, in spite of all the recent hyperventilating, even if the SC were to overturn Griswold and return that issue to the states, would any state legislature be successful in restricting birth control? I doubt it. Unlike the courts, legislatures must respond to the demands of their citizenry and the constituency for eliminating contraception is miniscule.

          1. Yves Smith Post author

            In the book Agnotology, the authors cite as a specific example the loss of knowledge about birth control methods.

            There were birth control techniques going back as far as Ancient Egypt. But there may have been limited access to the needed herbs and potions, and if so, that would mean the wealthy and their pet household members could get them, others not much/at all:

            The earliest forms of birth control, as well as abortion, were found in Ancient Egypt and Mesopotamia as far back as 1850 BC. Papyrus scrolls were found to contain directions on how to make birth control, using honey, acacia leaves, and also lint as a form of cervical cap to prevent sperm from entering the womb.

            In the Kahun Gynecological Papyrus from 1850, pessaries of acacia gum as a contraceptive are described. Extended breastfeeding for up to three years was also used as a form of birth control in Ancient Egypt. Perhaps one of the most famous ancient forms of birth control was the silphium plant, native to North Africa. This plant was used as a contraceptive and was incredibly popular in ancient Greece and Rome. The plant could only be grown in a small area of what is now modern-day Libya. Over-cultivation of the plant led to its eventual extinction.

            In ancient Greece, many plants were used as a form of birth control, including asafoetida, a close cousin of the extinct silphium. Queen Anne’s Lace was another popular contraceptive plant, and in some parts of India, it is still used for birth control today.


            Recall that no form of birth control, save an abortion and tubal ligation, is fully effective.

  4. Carolinian

    Of course such a draconian law only transforms from political red meat into a reality if it is enforced. In any case it’s yet more evidence that those who think GA and NC are now “purple” states may be kidding themselves. Georgia has a large city surrounded by a very conservative state. And Atlanta itself, while certainly diverse, is not all that leftish either with most of the population in the suburban counties rather than the downtown core. I do think these laws are more about “winning through intimidation” rather than actually prosecuting women and provoking nationwide condemnation. Secession days are over.

    1. Yves Smith Post author

      Politics is local. I guarantee a county prosecutor will prosecute. It only takes a few convictions to have a chilling effect.

      Georgia has 48 elected DAs

      Only 7 so far have said they won’t prosecute.


      And those 7 have put targets on their backs in terms of having the right raise $ against them in their next election. They had better be confident in the leanings of their voters.

  5. Laughingsong

    From Healthline: “Embryo vs. Fetus: In human pregnancies, a baby-to-be isn’t considered a fetus until the 9th week after conception, or week 11 after your last menstrual period”

    So yeah um….. they aren’t even called fetuses in the first 6 weeks. Hmm. Loophole maybe by a clever lawyer….

    My ectopic had a heartbeat in the 8th week, for all the good that would have done either of us. You could see it on the ultrasound. If I couldn’t have had that tubal pregnancy taken out I wouldn’t be here writing this, so at least they kept in the whole “danger to the mother” thing, which is more than the Catholic Bishops of America did when they announced their position on abortion after a synod that same summer.

    As it turned out, it ruptured while they were prepping me for surgery and the damage put paid to any future attempts at children.

  6. Dave in Austin

    I’m encouraged by the outrage. Ridiculous laws are often written out of anger and frustration. In this case the anger and frustration was directed at the Supreme Court for usurping the role of the legislatures and saying “Abortion is in the Constitution”.

    Now the ball is back in the legislatures’ court. So the laws- and the law-makers- will have to face what I think they should have had to face all along- the voters.

    I’ve always believed Roe was wrongly decided, not because I believe abortion is wrong (or even that the Solomon-style decision to “Divide the fetal period into thirds” is bad public policy), but because I believe major decisions on how people should live their lives ought to be decided by elected officials, not appointed judges.

    Let the game begin! I’m sure most legislators are not looking forward to it.

    1. lentil

      Encouraged? Outrage is blase at this point, Dave.

      But anyway — it’s not quite right to say that the abortion issue is so divisive because it’s about courts vs. legislatures, or that it’s about “major decisions on how people should live their lives.” No.
      It’s about “who is counted as a human being and who isn’t?” Is the embryo/fetus/unborn-thing a human or not? when does it become a human? and when does it begin to have rights of its own?
      And who gets to decide who is human or not? who has rights or not? The Supreme Court? The Legislature? The people? Can we vote to decide who is not considered human anymore? Or maybe the fetus is only like, two-thirds human, so we are free to do what we want with it?

      @Carolinian, says above, “Secession days are over.” Uhmmm, really? …. Disagreements about who is human or two-thirds human led to exactly that in the past, didn’t it? Carolinian, I’m not as sanguine as you are about the outcome of this national —- “debate”?

    2. marym

      With the Dobbs ruling appointed judges decided that state governments should tell women how to live their lives instead of women deciding for themselves.

      If state officials are now writing laws to direct express “anger and frustration” at the Supreme Court they should be writing laws that tell the judges how to live their lives. Instead they’re writing laws controlling how women live their lives.

      The legislators and governors seem to have been looking forward to it very much, as several states already had laws in place to trigger with the overturning of Roe/Casey.

  7. fringe element

    Before the class action suits in 1969 that opened good jobs to women and before Roe, marriage was the excuse used to deny women careers or good jobs. The explanation was that a married woman would just get pregnant and leave, so it was not worth the investment to train her for a good job that paid a family wage. The same rationale was used to exclude women from law school or medical school.

    When I grew up, my mother was the only woman on our street who had her own car. All the other wives and moms depended on their husbands to take them wherever their husbands were willing for them to go. None of them even knew how to drive, because they never expected to need to do so.

    1. Vermont farmer's wife

      Don’t know how old you are, but I am old enough to remember when it was highly unusual for any family to have more than one car, regardless of how many of the adults were employed. Our next-door neighbors both had jobs: he was a construction worker, she worked on the production line for a pharma company, but only one car between them. Buying and maintaining vehicles was expensive – still is – and those cars from earlier decades were not nearly as dependable as my Subaru; they demanded a lot of tinkering.

      My mother had a license, but we could not afford two cars so she used The Car evenings and weekends when Dad didn’t have to be at work. Dad’s job was enough to support our family and Mom did not have to get a job, instead she worked as a volunteer for a whole roster of local charities, every bit as valuable as paid employment. She was also home with us kids, another thing you can’t put a price on, and she walked. A lot. She was in great shape her whole life.

      My maternal grandparents, born in the early 20th century, both of whom lived to welcome the 21st, never owned any car and neither ever had a driver license. Grandpa walked to work and wherever else he had to go, Grandma walked and, if necessary, took the bus to go shopping. I’d bet that had something to do with their longevity too. Anyway, it’s not always accurate to critique past social realities through the lens of life in 2022.

  8. jochen

    I wonder if that personhood provision could backfire. Could there be a way for a woman to sue her fetus and force the state to make this minor vacate the premises?

  9. Stick'em

    At the heart of this discussion is the recognition there is no universally agreed upon time when “life” magically begins. This ambiguity – and science has no one answer – is compounded by the observation our culture clearly values being born and other milestones as significant accomplishments.

    In general, viability in a hospital occurs when a fetus’ lungs mature through the development of surfactant. Lung surfactant is necessary for a baby’s lungs to inflate once it is in the atmosphere outside the uterus. When does this happen? Around 26 weeks.

    Therefore, a fetus simply is not capable of life without its mother breathing for it until this point in time. The fetus is not capable of being an independent human being at least until this point, no matter how often its heart beats or its brain has waves or anything else. So surfactant is necessary, but not not necessarily sufficient for being a living human in the world. This is as close as we’ve gotten to one magical moment when life is possible, but it isn’t convincingly when life “begins” because birth has not happened.

    This is a significant accomplishment, just as being born itself is a significant accomplishment. Remember all the spontaneous miscarriages that occur. And the truth is half of all conceptions spontaneously miscarry. How are these treated in our culture? We don’t have names given or birth certificates or cemeteries filled with spontaneously miscarried fetuses. Being born means something being in the womb does not.

    It isn’t just surfactant or birth we consider significant milestones in a moral and legal sense. There are many examples in which Americans have a different legal standing once we reach a certain age than we did prior:

    Ronald Reagan can’t be president when he’s a fetus. He’s got to be 35 to have the legal standing to be president. Danica Patrick can’t drive a car when she’s a fetus. She’s got to be 16 years old in most states to get a license. On and on it goes. Drinking age. Age of military service. Not everyone has the same standing.

    There is a legal and moral difference between being a fetus in utero and being an adult tax paying American. We have different sets of rights and legal standings accordingly.

    It is nonsensical to presume the rights of conceptions, half of which will never be born, are the same as the living breathing people who survived long enough to be born and accomplish things in the world.

    While it isn’t clear exactly what the moral and legal status of a fetus should be in our country regarding abortion, it is clear the moral and legal status of a fetus is definitively not the same as that of an adult citizen. What’s the answer? I’m not sure. I am sure the idea personhood – and all the rights that come with – being bestowed at conception is simply not the way human beings look at the world. Half of human conceptions never make it to birth naturally due to inherent medical issues, and this means something.

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