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FACT: The New Georgia Law Does Not Permit Sending Women to Jail For Their Abortions

Despite what some are saying, Georgia law has prohibited the prosecution of women for the deaths of their children in utero since 1876. The new fetal heartbeat legislation has not changed that. The statutes and case law are very clear on this point and progressives claiming otherwise are lying.

Alyssa Milano is out with this gem of a tweet:

It comes on the heels of Mark Joseph Stern at Slate writing an inflammatory piece that grossly misstates Georgia law and flat out lies about the fetal heartbeat legislation. These are activists using news sites to push fake news, lies, and fundraising opportunities for leftwing causes.

Let me break this down for you as someone who both went to school in Georgia and practiced criminal law in Georgia.

The official code of Georgia, for non-lawyers, is referred to as the “OCGA,” or Official Code of Georgia, Annotated.

Under Title 16 of Georgia law, which is the criminal code, crimes against people are divided between crimes against those born and crimes against those in the womb. If a child is born and then killed, it is murder. If a child is killed in the womb, it is infanticide or feticide.

OCGA § 16-5-80 is Georgia’s feticide law and it clearly states that no woman can be prosecuted in the State of Georgia for a child dying in her womb. It is strictly prohibited and HB 481, the Georgia fetal heartbeat legislation, does not change that provision. You can see OCGA § 16-5-80 here and you can see the new law here.

Note carefully how laws in Georgia are drafted. The legislation adds to, changes, or removes sections of laws that are designated. Yes, there is a section 16 of the HB 481 that states “all laws and parts of laws in conflict with this Act are repealed,” but that legislative boilerplate does not overrule any law not specifically referenced in the legislation. That’s not my opinion, but well settled law.

If you word search the new legislation you’d find that OCGA § 16-5-80 is not referenced at all, meaning it is not changed, but is still binding law.

What is referenced is OCGA § 16-12-141, which provides, in part, an affirmative defense for doctors who perform abortion. One of the new defenses a doctor raises is he can avoid penalties by showing “[a] woman sought an abortion because she reasonably believed that an abortion was the only way to prevent a medical emergency.” See HB 481, pg. 19, line 172.

Some Twitter “legal experts” have posited that adding this affirmative defense must be proof that a woman can be prosecuted now. But again, OCGA § 16-5-80 has not been changed and it clearly states that “Nothing in this Code section shall be construed to permit the prosecution of… [a]ny woman with respect to her unborn child.” OCGA § 16-5-80(f)(3).

Likewise, Hillman v. State, 232 Ga. App. 741, 503 S.E.2d 610 (1998) determined that OCGA § 16-12-141 does not apply to pregnant women. In that case, a woman shot herself in the abdomen with a handgun “with intent to produce a miscarriage and an abortion of her unborn child . . . resulting in the death of her unborn child[.]”

As the court went on to note,

The state’s first criminal abortion statute was enacted in 1876. Brinkley v. State, 253 Ga. 541, 543 ( 322 S.E.2d 49) (1984). This statute has been repeatedly reenacted by the legislature in substantially the same form. In construing subsequent amendments to this statute, Georgia’s appellate courts have consistently ruled that the pregnant woman upon whom the abortion procedure was performed cannot be indicted for this offense.

In other words, since 1876, Georgia has prohibited the prosecution of any woman for the death of her child in utero and it is clear law in Georgia that “pregnant woman upon whom the abortion procedure was performed cannot be indicted for this offense.”

Adding to that, the court in Hillman rejected the state’s argument for applying OCGA § 16-12-141 to the pregnant woman in that case who shot herself to kill her child stating that if it did so “any woman who suffers a post-viability miscarriage could be subject to scrutiny regarding whether or not she intentionally acted to cause the miscarriage.” Therefore, the court made clear that under Georgia law a woman cannot be charged with a crime for the death of her child in utero under any circumstances.

HB 481, the fetal heartbeat legislation, does not change that law, which has been settled law in Georgia since 1876. Again, you don’t have to believe me. You can read the law yourself and see that it does not amend, change, or otherwise repeal OCGA § 16-5-80, the law that prohibits prosecution of a woman for the loss of her child in utero.

It is remarkable how progressives have decided to vocally lie about the legislation and Georgia law. It is more remarkable that the media has willfully amplified those lies while refusing to rebut them with facts.

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