On May 7, Governor Kemp signed House Bill 481, the harshest set of restrictions on abortion in the history of the country. But the General Assembly may not have intended it that way.

The law does two things. First, it disallows physicians from providing abortion care to pregnant women whose last period was more than six weeks prior, unless the pregnancy was the result of rape or incest, in which case the victim is given 20 weeks to escape her captor and terminate her pregnancy. There are exceptions for “futile” pregnancies, where the child will not survive after birth, and for medical emergencies, where the woman will die or suffer irreversible physical (but not emotional or mental) impairment if the government forces her to give birth.

These provisions, enacted in the wake of the Supreme Court's Republican realignment, are not unusually harsh compared to the work of other red states. Until you get to the personhood provision.

OCGA § 1-2-1 currently limits personhood to people who have been born and to corporations. But starting on Jan. 1, 2020, that definition will expand to include any human being with a fetal heartbeat. “'Natural person' means any human being including an unborn child.” So here's the problem with that:

In Georgia, under OCGA § 16-5-1, “causing the death of another human being” is murder regardless of whether they're the product of rape or incest. It's a crime regardless of whether that person's life is “medically futile.” And under Georgia's felony murder statute, the broadest in the country, it's also a crime, punishable by life in prison, when that person's death is caused by any other felony—say smoking cocaine or, as Justice Keith Blackwell once noted, causing someone apprehension of harm while changing lanes on the highway.

Even people who leave the state to get an abortion may not be exempt because, when you form an agreement to kill a human being and then take substantial steps to do it (like packing your bags and contacting an out-of-state clinic), you have completed the crime of conspiracy to commit murder.

The personhood problem removes rape and incest and medical necessity protections from the realm of black-letter law and into the far murkier domain of prosecutorial discretion. But prosecutors aren't angels, and a promise to use a statute responsibly isn't as reassuring as a textual basis to restrict the state's power to prosecute.

Even leaving prosecutorial discretion out of the equation, officers have wide latitude to investigate potential crimes. A pregnant woman who asks for a sip of her husband's beer or takes a drag off a cigarette might provide reasonable articulable suspicion for more questions about her habits. A woman who suffers a miscarriage might have to explain how it happened, or worse, find herself arrested. At trial, evidence of multiple miscarriages might be admitted as proof of a plan or scheme to avoid giving birth or to show that the woman intentionally avoided steps, like taking a baby aspirin, that can prevent miscarriage.

Then there are the problems that the personhood shift poses to the state. In the preamble of the bill, HB 481 states that “the State of Georgia, applying reasoned judgment to the full body of modern medical science, recognizes the benefits of providing full legal recognition to an unborn child above the minimum requirements of the law” and then goes on to cite Georgia's version of the 14th Amendment. This, plus personhood, suggests that the statute provides unborn Georgians with the full panoply of civil liberties.

But, of course, there are hundreds, maybe thousands, of pregnant women in Georgia's jails and prisons. And each of those unborn children, starting on January 2020, will have the right to due process, including the right to an attorney. The state does not appear to have allocated any funds to provide these children with representation.

And imagine, for a moment, an unborn child who has a guardian ad litem file a habeas corpus motion on her behalf. What does the state do if the motion is granted? And how does it justify the weeks or monthslong detention of a child in an adult prison? To look for analogous cases, you would have to find stories of mismatched conjoined twins—but although Chang and Eng Bunker reportedly got into a fight with a doctor who tried to examine them, there don't appear to be any cases dealing with what happens when an innocent person is attached to someone who may be guilty of a crime.

Now, it's understandable why the General Assembly might include these provisions. While they might not be a good way around the holdings of Planned Parenthood v. Casey and Roe v. Wade (which held that states may not “by adopting one theory of life … override the rights of pregnant women that are stake”), they provide some protection from privacy challenges under the State constitution, which has been held to override, for instance, laws prohibiting sodomy between consenting adults, and to protect against the involuntary provision of food or medical care. A law protecting a third person might better withstand such challenges.

But the end result is that personhood for an entire new class of people is going to have sweeping consequences. And, perhaps in its haste to make new constitutional law at the federal level, the General Assembly forgot to see how these rules would affect the governed, right here in Georgia.

Andrew Fleischman is an appellate attorney with Ross & Pines in Atlanta.

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