A Reasoned Approach to the Abortion Wars

“Nobody can say with confidence exactly what a court will do. What is visible from our analysis is that it is likely not a slam dunk either way.”

The uproar over Georgia’s new abortion law accelerates daily, with protests as well as threats from Hollywood to boycott the state’s movie industry. Most of the critics harbor the belief that the law is unconstitutional, and they are not hesitant to publicly proclaim that message. This raises an essential question. When the validity of the law reaches a Georgia courtroom, how will a Peach State judge rule?

Constitutional Considerations

Factors a judge will consider are numerous. A prominent one is the extent to which any abortion law provides a reasonable set of defenses to potential prosecution. A close analysis of Georgia law reflects a number of responses which can be made to a criminal abortion charge.

• Charges against the mother. These are not allowed. The law targets abortion providers. A woman cannot be successfully prosecuted under the law. The Georgia position was staked out in a prominent Court of Appeals decision which held that “The General Assembly has refused to criminalize a pregnant woman’s acts in securing an illegal abortion.” This decision was announced several years ago, but it has never been reversed. It remains the controlling law today.

In an excellent Merion West article, a Metro Atlanta area District Attorney identifies some of the rhetoric employed to attack the new law. D.A. John Melvin points to one publication’s headline which proclaims that “women who terminate their pregnancies would receive life in prison.” Prosecutor Melvin correctly concludes that nowhere does HB481 (the new Georgia law) impose liability on a woman who obtains an abortion.