Hb 481 - Heartbeat Bill

• Jurisdiction: Georgia,United States
• Citation: Vol. 36 No. 1
• Publication year: 2019
• topic: Constitutional Law,Family Law,Tax Law,Criminal Law,Health Law

HB 481 - Heartbeat Bill

Michael G. Foo

Georgia State University College of Law, mfoo1@student.gsu.edu

Taylor L. Lin

Georgia State University College of Law, tlin13@student.gsu.edu

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PERSONS AND THEIR RIGHTS

Persons and Their Rights: Amend Chapter 2 of Title 1 of the Official Code of Georgia Annotated, Relating to Persons and Their Rights, so as to Provide that Natural Persons Include an Unborn Child; to Provide that such Unborn Children Shall Be Included in Certain Population Based Determinations; to Provide Definitions; Offenses Against Public Health and Morals: Amend Article 5 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, Relating to Abortion, so as to Provide Definitions; to Revise the Time when an Abortion May Be Performed; to Provide for Exceptions; to Provide for the Requirements for Performing an Abortion; to Provide for a Right of Action and Damages; to Provide for Affirmative Defenses; Alimony and Child Support: Amend Chapter 6 of Title 19 of the Official Code of Georgia Annotated, Relating to Alimony and Child Support, so as to Provide a Definition; to Provide a Maximum Support Obligation for Certain Circumstances; Parent and Child Relationship Generally: Amend Chapter 7 of Title 19 of the Official Code of Georgia Annotated, Relating to Parent and Child Relationship Generally, so as to Provide that the Right to Recover for the Full Value of a Child Begins at the Point When a Detectable Human Heartbeat Exists; Woman's Right to Know: Amend Chapter 9A of Title 31 of the Official Code of Georgia Annotated, Relating to the "Woman's Right to Know Act," so as to Provide for Advising Women Seeking an Abortion of the Presence of a Detectable Human Heartbeat; to Provide for the Content of Certain Notices; to Repeal Certain Penalties; Physician's Obligation in Performance of Abortions: Amend Chapter 9B of Title 31 of the Official Code of Georgia Annotated, Relating to Physician's Obligation in Performance of Abortions, so as to Require Physicians Performing Abortions to Determine the Existence of a Detectable Human Heartbeat Before Performing an Abortion; to Provide for the Reporting of Certain Information by Physicians; Income Taxes: Amend Chapter 7 of Title 48 of the Official Code of Georgia Annotated, Relating to Income Taxes, so as to Provide that an Unborn Child with a Detectable Human Heartbeat is a Dependent Minor for Income

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Tax Purposes; to Provide for Legislative Findings; to Provide for Related Matters; to Provide for Standing to Intervene and Defend Constitutional Challenges to this Act; to Provide a Short Title; to Provide for Severability; to Provide an Effective Date; to Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 1-2-1 (amended); 16-12-141 (amended); 19-6-15 (amended); 19-7-1 (amended); 31-9A-3, -4, -6.1 (amended); 31-9B-2, -3 (amended); 48-7-26 (amended)

Bill Number: HB 481

Act Number: 234

Georgia Laws: 2019 Ga. Laws 711

Summary: The Act adds an unborn child with a detectable human heartbeat to the definition of a natural person and includes such unborn child in state population counts. The Act defines abortion, prescribes when abortions may be performed, provides exceptions to abortion performance limitations, establishes requirements for performing an abortion, and provides for a right of action, damages, and affirmative defenses. The Act permits alimony and child support payments starting when an unborn child has a detectable human heartbeat. Parents have the right to recover the full value of a child's life when a detectable human heartbeat exists. The Act requires that women seeking an abortion be advised that a detectable human heartbeat exists, provides for certain notices to the woman, and repeals certain penalties. The Act requires physicians who perform

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abortions to determine the presence of a detectable human heartbeat before performing an abortion and requires physicians to report certain information concerning such abortions. The Act considers an unborn child with a detectable human heartbeat a dependent minor for income tax purposes. The Act also provides for legislative findings and provides standing to intervene and defend constitutional challenges to the Act. The Act provides a short title, provides for severability of claims, provides an effective date, and repeals conflicting laws.

Effective Date: January 1, 2020

History

House Bill (HB) 481 is one of many abortion regulations introduced and enacted in Georgia. In the mid-nineteenth- and early twentieth-century, abortions were illegal in the United States (U.S.).¹ The rise of the women's rights movement in the 1960s was a driving force behind the major changes in abortion laws across the country.² By 1973, when the United States Supreme Court announced its decision in the landmark abortion case Roe v. Wade, seventeen states had legalized abortion.³

In 1968, Georgia enacted a criminal abortion law generally patterned after the American Law Institute's 1962 Model Penal Code, which replaced more than ninety years of statutory law.⁴ By 1973, the Model Penal Code's section on abortion served as a template

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statute for nearly a quarter of the states with abortion laws.⁵ The Model Penal Code abortion statute generally outlawed abortions subject to three exceptions: (1) carrying the pregnancy to term would cause harm to the mother, (2) the fetus was unlikely to survive after birth, and (3) the pregnancy was the result of rape or incest.⁶

Georgia's 1968 abortion law tracked the Model Penal Code's structure, but it provided no exception for incest.⁷ Instead, Georgia's law provided for abortions only in cases of rape, severe fetal deformity, or instances of severe or fatal injury to the mother.⁸ Further restrictions on abortion included a residency requirement, a written confirmation by three physicians and a three-member special committee approving justification for the abortion for one or more of the statutorily enumerated reasons, performance of the abortion by a board-licensed facility under the approval of a three-person committee at that hospital, and certifications in situations of rape.⁹

The 1968 abortion law and its specific restrictions on abortion were the focus of the Supreme Court case Doe v. Bolton, decided as a companion case to the seminal abortion case Roe v. Wade.¹⁰ In Doe, the Court acknowledged states' rights to "readjust its views and emphases in the light of the advanced knowledge and techniques of the day."¹¹ Despite this, the Court struck down Georgia's abortion law as unconstitutional, finding that certain restrictions violated the Privileges and Immunities Clause of the Constitution and that many restrictions were not rationally related to the regulation of abortions.¹² Together with Roe, Doe reaffirmed the Supreme Court's holding that terminating a pregnancy via abortion is a constitutionally protected right.¹³

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The next major development in Georgia abortion law was the passage of the "Woman's Right to Know Act," signed into law by Governor Sonny Perdue (R) on May 10, 2005.¹⁴ The Georgia General Assembly passed the Woman's Right to Know Act to ensure women made an informed decision when choosing to have an abortion.¹⁵ The Woman's Right to Know Act permitted the performance of an abortion only after the patient gave voluntary, informed consent to the procedure at least twenty-four hours in advance, except in cases of medical emergency.¹⁶ To give informed consent, the Act required that the pregnant woman be provided with certain accurate, objective information about abortions and pregnancy before proceeding with the procedure.¹⁷ Such information included: the medical risks of the procedure, the probable gestational age of the unborn child, the medical risks of carrying the pregnancy to term, the medical assistance available for childcare, and information about the father's liability for child support.¹⁸

Following the Woman's Right to Know Act, the Georgia General Assembly passed legislation in 2012 that prohibited the performance of abortions after twenty weeks.¹⁹ In the final hours of the 2012

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legislative session, Georgia lawmakers passed HB 954, commonly referred to as the "fetal pain" bill because Georgia legislators asserted that a fetus can feel pain at twenty weeks' gestation, which grants the state an interest in protecting that potential fetal life.²⁰ Before Georgia's enactment of its twenty-week abortion ban, Georgia had been one of the last places in the South where abortion procedures remained available later in the pregnancy term.²¹ Although Georgia was the tenth state to pass a twenty-week abortion ban, Georgia was the first state to impose a twenty-week abortion restriction in a place where substantial numbers of abortions had been provided.²²

Though the original "fetal pain" bill sought to ban abortions after twenty weeks entirely, the finalized law allowed for some abortions to take place at the twenty-week mark or later under certain circumstances.²³ Effectively, Georgia legislators tightened an existing loophole without eliminating it entirely.²⁴ The twenty-week abortion ban narrowed medical exemptions for ending pregnancies and required abortions performed after twenty weeks to be performed in a manner that brings the fetus out alive.²⁵ Unlike the Living Infants Fairness and Equality (LIFE) Act, the 2012 law did not include an exception for rape or incest;²⁶ however, the 2012 legislation did provide an exception allowing for the protection of the life and health of the mother.²⁷ The twenty-week ban also protected doctors from

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civil suits arising out of the law and from felony charges and prison time of up to ten years.²⁸

The "fetal pain" bill passed on the last day of the legislative session in 2012 out of a compromise, which produced an additional exemption for physicians performing abortions after twenty weeks to conduct the procedure if the fetus has...