That Georgia Heartbeat Bill Is Worse Than You Think

That Georgia Heartbeat Bill Is Worse Than You Think May 9, 2019

We need to talk about Georgia’s heartbeat bill.

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.

Some people seem to be surprised. I’m not. Apparently, some people were under the impression that the anti-abortion movement only wanted to criminalize doctors, and not women who have abortions. Sorry guys! That was never the endgame here.

I think I have an idea where some of this confusion comes from. At some point, the movement to criminalize abortion shifted. Some of this is speculative, but my suspicion is that laws banning abortion were one more about punishing women for being sluts than about saving babies from being murdered. This changed as an entire generation—and maybe two—grew up on the rhetoric of abortion being murder. They believe it.

Rhetoric initially adopted for tactical reasons can sometimes take on a life of its own. And if abortion is murder, getting an abortion is the equivalent of hiring a hitman—and being present when the hit goes down.

In reading the bill, I noticed something very, very odd. It makes two completely separate changes, and in so doing it legalizes murder (I assume it does this unintentionally). In sum, the bill both bans abortion after six weeks of gestation, and makes fetuses and embryos legal persons at all stages of development. Only one of these changes is necessary. As a result of mixing these two provisions together, the law actually states that a fetus is a legal person at five weeks gestation, but you can kill it. This bill does not feel thought through.

The first part is fairly typical of heartbeat bills:

No abortion is authorized or shall be performed if an unborn child has been determined … to have a detectible human heartbeat …

There is heartbeat detectible at about six weeks gestation, which is around when most women discover they are pregnant. The bill does offer some exceptions, and here it gets a bit odd.

First, it states that both removing “a dead unborn child caused by spontaneous abortion” and removing an ectopic pregnancy “shall not be considered an abortion.” This isn’t how words work, but okay. This much is fairly understandable.

Second, the bill states that abortions may be performed after there is a detectible human heartbeat if there is a “medical emergency”; if the pregnancy is “medically futile”; or if the pregnancy “is the result of rape or incest in which an official police report has been filed alleging rape or incest” and the gestational age is 20 weeks or less. Say what now?

Remember earlier, when I think that at some point the anti-abortion movement shifted from punishing sluts to saving babies? This is where the fault line between the two comes in. If abortion is murder, there should be no exception for rape or incest. After all, it’s still murder. If opposition to abortion is about punishing slutty slut sluts, though, this exception makes sense.

My only guess as to what is going on here is that some old guard who still cares primarily about punishing women for being sluts insisted on having this in here. Either that, or someone thought that it would make the bill easier for some people to stomach, and that it’s better to save most babies and have a bill that passes than to fail to save any babies by including all babies and having the bill fail. Outside of this, I got nothing.

You may be interested in the definitions of “medical emergency” and “medically futile”:

‘Medical emergency’ means a condition in which an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman.

I have a hearing condition which is exacerbated by pregnancy. If I have another pregnancy, my hearing will further deteriorate. This is irreversible. I’m curious. Does this count as “substantial … impairment of a major bodily function”?

See, that’s my concern—who decides what level of harm is “substantial”? I’m guessing it’s not the woman.

There’s also this:

No such greater risk shall be deemed to exist if it is based on a diagnosis or claim of a mental or emotional condition of the pregnant woman or that the pregnant woman will purposefully engage in conduct which she intends to result in her death or on substantial or irreversible physical impairment of a major bodily function.

In other words, being suicidal because you’re pregnant does not count as a medical emergency. I’m reminded of Bei Bei Shuai.

Anyway, moving on:

‘Medically futile’ means that, in reasonable medical judgment, an unborn child has a profound and irredeemable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.

I am once again curious about how this will be defined. There are some conditions where the prognosis is up to a year, or up to two years. Infants with these conditions may die right after birth, but some may survive a few months or years before dying—sometimes in severe pain. Are these conditions considered incompatible with sustaining life after birth? Who decides?

Regardless, the bill could have stopped here. This much bans abortion after around six weeks, except in case of rape or incest, medical futility, or medical emergency. Open and shut.

And yet … it doesn’t stop. It goes on.

‘Natural person’ means any human being including an unborn child.

Here is where things really go off the rails.

(d) Unless otherwise provided by law, any natural person, including an unborn child with a detectible human heartbeat, shall be included in population based determinations.

(e) As used in this Code section, the term:

(1) ‘Detectible human heartbeat’ means embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the heart within the gestational sac.

(2) ‘Unborn child’ means a member of the species Homo sapiens at any stage of development who is carried in the womb.

As written, this Georgia bill legalizes murder. No, go with me here! Look, if “‘natural person’ means any human being including an unborn child” and unborn child is defined as “a member of the species Homo sapiens at any stage of development who is carried in the womb,” why in the blazes does this bill only ban abortion after the detection of a fetal heartbeat?

This. Does. Not. Make. Sense.

It is also, again, completely unnecessary. If your sole and only goal is to ban abortion, there is no reason you need to make fetuses (and embryos, and zygotes) natural persons. None. You could take out this whole bit about natural persons without changing the whole banning abortion after six weeks gestation thing. At all.

This bill actually creates a serious human rights violation. If all fetuses are legal people—as the bill states—why is it legal to have an abortion at 16 weeks if the pregnancy is the result of rape and incest, but not if it isn’t? If we take the bill’s statement that fetuses are legal people seriously, this is akin to saying that you can kill an infant that was conceived by rape or incest, provided it’s less than three months old. If it’s a person, it’s a person. Its conception does not change its personhood.

What the heck is this bill?

I bet I know what it is. I bet it’s a fetal personhood bill and a heartbeat bill mashed together, and no one thought about the fact that they simply do not work together. Fetal personhood bills are a thing; heartbeat bills are a thing. But I’m pretty sure they’ve never been mashed together to create whatever this is before.

Fetal personhood has never been passed before, because it forces a complete legal reworking of, well, a lot. Fetal personhood means that if you have a miscarriage, you need to call a coroner. I’m not joking! If it’s a legal person, it needs a death certificate—and its remains need to be disposed of properly. There are laws against hiding or privately disposing of dead bodies. And remember, the law doesn’t make fetuses and embryos persons starting at six weeks. It makes them persons from the get go. And that includes zygotes.

Georgia appellate attorney Andrew Fleischman has already noted that under this bill, the state is illegally holding thousands of citizens in jail—after all, the fetuses and embryos of imprisoned women have their own independent legal rights. I’m curious whether this means that pregnant women are de facto guilty of false imprisonment? Perhaps not; parents are allowed to ground their children, after all. But there’s a whole ream of legal questions opened up by defining fetuses and embryos as legal persons.

Oh and by the way—what I said about calling a coroner when you miscarry was not hyperbole. There are countries where abortion is criminalized that investigate and try women for miscarriages.

You could be tried and convicted for negligent homicide—or second-degree murder—if a judge determines that your miscarriage was caused by something you did, even if it was unintentional. Even if you wanted the baby.

Some commentators have noted that women could be charged with conspiracy to commit murder for leaving the state to obtain an abortion—and that anyone who helped her could as well. Again, this is all under the personhood part of the law. Simply banning abortions after six weeks would not do this. Making fetuses and embryos legal persons, however, did.

In fact, the bill didn’t need to include anything about banning abortion or anything about heartbeats. It could have simply defined an unborn child as a natural person and left it at that. This would have de facto banned abortion all by itself. After all, this definitional change alone made abortion murder.

This is horrifying.

I initially left the pro-life movement after concluding that the best way to decrease the number of abortions was to expand the use of birth control and the availability of social safety net programs—things those who are anti-abortion tend to oppose. But the more time has passed, the more fundamental my support for abortion rights has become. When someone speaks of making fetuses and embryos legal persons, I see red.

The very idea that a legal person could inhabit the body of another legal person is absurd. To the extent that we give fetuses or embryos legal personhood, we remove pregnant women’s legal personhood. Period and full stop. Either you own your body and have the right to make your own decisions over it, or you do not.

I’m reminded of a sex ed worksheet my 4th grade daughter came home with recently. “Your body belongs to you,” it said. That is no longer true, in Georgia.

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