Abortion access

Failed anti-abortion law in Georgia, 2002

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Quotation:

"The State of Georgia has the duty to protect all innocent life from the moment of conception until natural death. We know that life begins at conception. After three decades of legal human abortion, it is now abundantly clear that the practice has negatively impacted the people of this state in many ways, including economic, health, physical, psychological, emotional, and medical well-being. These, too, are areas of legitimate concern and duty of the state.... The practice of abortion is contrary to the health and well-being of the citizens of this state and to the state itself and is illegal in this state in all instances." Bobby Franklin, from HB 377

Overview:

House Bill 1 was pre-filed in the Georgia House on 2002-NOV-15 by Bobby Franklin. It was scheduled to be introduced shortly after the start of the legislative session on 2003-JAN-13. Perhaps by coincidence, the latter date was nine days before the 30^th anniversary of the U.S. Supreme Court's Roe v. Wade decision which guaranteed women access to early abortions. If it became law, it would have severely limit women's access to abortion within Georgia. It would require her to first obtain permission from a court before a physician could legally perform an abortion.

Because this bill so obviously conflicts with freedom of abortion access as ruled by the U.S. Supreme Court, there was no chance that this bill could be found constitutional, even if it were passed by the Georgia House and Senate, and signed into law by the governor. According to the Georgia General Assembly web site, the bill did not proceed.

Franklin introduced a very similar bill HB63, "Abortion; Due Process and Equal Protection Restoration Act of 2003" It apparently was more successful than HB 1. On 2003-JAN-16, it reached second reading. However, it appears to have not proceeded further. ₆

He introduced HB 377 to criminalize abortions. On 2003-FEB-14, t also reached second reading. It does not appear to have proceeded further. ₇

What the bill would allow, and prohibit:

As currently worded, the proposed bill defines an abortion as "the intentional termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus." ₁ Once a woman became pregnant, she would be forced to continue the pregnancy, unless she first initiates a lawsuit and wins a court battle.

One serious deficiency of the original House Bill 1 is that it did not define when pregnancy begins. Pro-choice advocates and the medical profession agree that pregnancy begins when the pre-embryo is implanted into the wall of the womb. But pro-lifers generally believe that it occurs during the conception process. If the courts were to recognize the latter definition, then the insertion or use of an intra-uterine device (IUD) which is believed to allow conception but prevent implantation, could be considered an "intentional termination of human pregnancy" and be criminalized under this bill.

In its third reincarnation, House Bill 377, Franklin made it clear that the law would apply to all instances from conception to birth. He added a clause which defined a fetus as: "...a person at any point of development from and including the moment of conception through the moment of birth. Such term includes all medical or popular designations of an unborn child from the moment of conception such as zygote, embryo, homunculus, and similar terms."

The author apparently is unaware that conception is a process that extends over a long interval. There is no "moment of conception."

One feature of the bill that many would consider a serious deficiency is that it would criminalize an abortion performed to end a pregnancy caused by rape or incest.

In addition to banning all elective abortions, the bill would criminalize many medically-necessary procedures:

	The removal of a dead embryo. A fertilized ovum goes through many stages (pre-embryo, morula, blastocyst, and embryo) before becoming a fetus at 9 weeks gestation. It would appear that this bill, if it becomes law, will allow a dead fetus to be removed from the woman's womb. However, it would not allow an abortion procedure to remove a dead pre-embryo, morula, blastocyst, or embryo. This could place the health and even the life of the woman at risk.
	An entopic pregnancy. In this situation, the pre-embryo attaches itself to the inside lining of the fallopian tubes, rather than to the womb. If no medical treatment is allowed, the embryo will grow, and eventually cause the tube to burst, producing a massive hemorrhage. Most women in this situation will die within minutes unless they can undergo emergency surgery. The only possible intervention is to remove the ovum, thus terminating the pregnancy. But such a procedure would apparently be prohibited by this bill. A doctor would be faced with two alternatives: doing nothing and letting the woman bleed to death internally, or saving her life by illegally terminating the pregnancy. The latter option would be a felony which could permanently cost him his license to practice medicine.
	Therapeutic abortion: "This includes conditions where continuation of pregnancy would involve risk to the life of the pregnant woman, or risk of grave injury to her physical or mental health. Thus the indications for therapeutic abortion are organic heart disease with failure, active tuberculosis, severe diabetes, renal failure, severe hypertension, acute hepatitis acute pancreatis, uterine bleedings, malignancy of breast or genital tract, threatened insanity, toxemia of pregnancy, etc." ₂ An abortion for one of these causes would apparently be criminalized by this bill. Since the dying woman's fetus is still alive, her pregnancy could not be legally terminated, even if the continued pregnancy were to cause her death.
	Uterine cancer: In rare instances, a malignant growth may appear in the woman's uterus. The standard medical treatment, often needed to save the woman's life, is to surgically remove both the cancer and fetus. Again, this would appear to be a criminal act under the bill.

It is not obvious whether the authors of this bill intended for women to be placed at tremendous risk during pregnancy, or whether the authors were merely incompetent, and unaware of the complications that can rarely occur during pregnancy.

Text of the bill:

As of 2002-DEC-9, HB 1 read, in part:

	(a 3) 'Execution' means an abortion.
	(b) No physician shall perform an execution in this state without first obtaining a death warrant as provided in this Code section.
	(c) Any person seeking to have an execution performed shall first file a petition in the superior court in the county of the petitioner's residence. Upon the filing of such petition, the court shall appoint a guardian ad litem to protect the rights of the fetus. The guardian ad litem shall be authorized to demand a jury trial to determine the rights of the fetus. Within 30 days after the filing of such petition, the court shall hold a trial for the purpose of balancing the fetus' right to live against the rights of the person seeking to have the execution performed. If the finder of fact determines that the fetus' right to live is superior, the execution shall not be performed and the fetus shall be permitted to continue through the stage of birth. If the finder of fact determines that the rights of the person seeking to have the execution performed are superior to the right of the fetus to live, the court shall sign a death warrant.
	(d) If the matter is tried before the court as finder of fact, the court shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a record of the evidence be maintained. The court shall render its decision within 24 hours of the conclusion of the hearing, and a certified copy of the same shall be furnished immediately to the parties.
	(e) An expedited appeal of the final order shall be available. The appellate courts are authorized and requested to issue promptly such rules as are necessary to ensure the expeditious disposition of procedures provided by this Code section.

This procedure could take months before a final decision is handed down: up to 30 days before the trial begins, the time that the trial takes, the time taken to issue the death warrant, the time taken for judicial appeals, etc. A simple abortion procedure could become a much more involved operation, increasing the chances of complications to the woman.

Any physician who performs an abortion without such a warrant "shall be guilty of a felony." This could lead to a jail sentence of up to five years. In the event that a physician is charged, the bill appears to assume that he is guilty; the bill would authorize the suspension of his/her license until a court ruling is given. If convicted, the physician's license would be terminated permanently.

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Implications for Georgia lawmakers:

This bill places Georgia legislators in an awkward position:

	If they vote against the bill, then they would lose many, perhaps most, votes in the next election.
	If they vote for the bill, then they would be violating their oath of office, which requires them to support the U.S. constitution. In the Roe v. Wade decision, the U.S. supreme Court ruled that the constitution contains a privacy concept that guarantees women free access to early abortions. This bill would terminate this right.

Comments on the bill:

	Rep. Bobby Franklin, (R-Marietta), the bill's sponsor, said: ''A mother would have to argue why the child should die and why her rights would take priority over the rights of the child." He called the bill: "...an attempt to restore the 14th Amendment due-process rights of the unborn....It's a constitutional protection that we all have that's not being adhered to when it comes to dealing with unborn children. The first thing we do as state representatives is take an oath of office to support the constitutions of the United States and the state of Georgia. Both ensure no person will be deprived of life or liberty without due process. We just want to make sure that's adhered to. Right now, the unborn child is losing his or her life without a trial....It's not outlawing abortion; it's just recognizing the child has rights, too." Commenting on the chances of this bill becoming law, he said: ''I'm an optimist. I think if people who claim they support the concept of the Constitution, and also those who claim to support the sanctity of human life, if those people really do, we have a good shot at passing this thing."
	Ebony Barley of the Georgia Abortion and Reproductive Rights Action League called the bill "a grotesque violation of a woman's right to choose." She said ''Think about the women in rural Georgia. They'll be required to talk about their personal health experiences in court. ... It's the highest form of humiliation.'' She added: ''Franklin's goal in introducing a bill that refers to abortion as an 'execution' is to open the floodgates to other 'anti-choice legislation'.''
	Ken Connor, president of the Family Research Council, wrote: "Some Georgia legislators ...intend to introduce a bill defining abortion as an execution requiring the issuance of a death warrant. A jury trial would determine whether the rights of the unborn child to live outweighed the 'rights' of the other to an abortion. Whether this approach is a sound strategy for reining in abortion-on-demand is arguable. But it does suggest that American attitudes toward life in the womb are changing. Americans increasingly recognize that the unborn child is a person deserving the same legal protections and due process as the rest of us." ₄

Poll results:

WorldNetDaily, a politically conservative news service, conducted a poll of their visitors' opinions of this bill. As of 2002-DEC-10, they received 5,962, making the margin of error less than one percentage point. However, it is unlikely that those who participated in the poll represent an accurate cross-section of American adults. Results were:

	Great, finally the unborn may get protection they deserve 37.49%
	Brilliant strategy to fight abortion 24.22%
	Great idea, but it has little chance of passing 18.90%
	Americans are too numb to this issue to care 4.75%
	Bad idea from its inception 4.70%
	Grotesque violation of a woman's 'right to choose' 3.57%
	Giving an unborn baby the right to trial? How ludicrous! 3.54%
	Other 1.76%
	It's clearly unconstitutional 1.07% ₅

Legislative history of the bill:

	Introduced 2003-FEB-13
	Session ended 2003-APR-23, without action on this bill.

Another essay on this topic:

Rep. Franklin has launched a similar bill in 2005

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References used:

"Georgia General Assembly: LC 21 7087," at: http://www.legis.state.ga.us/
Dr.Phalgun Desai, "Abortion," at: http://www.medivisionindia.com/
Felicia Dionisio, "Will abortion-seekers need 'death warrants'?: Georgia legislator seeks to give unborn babies right to jury trial," World Net Daily, 2002-DEC-9, at: http://www.worldnetdaily.com/news/
Ken Connor, "Washington Update," Family Research Council, 2002-DEC-9.
"Daily poll: Unborn right to trial," World Net Daily, at: http://www.worldnetdaily.com
"Georgia General Assembly: LC 21 7118," at: http://www.legis.state.ga.us/
"Georgia General Assembly: LC 21 7227," at: http://www.legis.state.ga.us/