Abortion ban: Georgia prosecutors refuse to enforce 'heartbeat' law

Maya Oppenheim

District lawyers in Georgia have announced they will not prosecute women for getting an abortion after the US state effectively banned the procedure.

Georgia governor Brian Kemp signed the controversial “heartbeat” abortion ban into law earlier in the month – giving the southern state one of the most restrictive laws in the US.

The legislation, which has provoked outrage among women’s rights groups, bans abortion once cardiac activity can be detected in an embryo. This can be as early as six weeks – at which point most women do not yet know they are pregnant.

The bill imposes jail sentences for women found guilty of aborting or attempting to abort their pregnancies, with the potential for life imprisonment and the death penalty.

It is not scheduled to come into effect until 1 January and is expected to face challenges in the courts – with it potentially being postponed.

But anti-abortion activists hope challenges will lead to the US Supreme Court reversing Roe vs Wade – the landmark Supreme Court decision which legalised abortion nationwide in 1973 – especially with new conservative justices Neil Gorsuch and Brett Kavanaugh sitting on the court.

The Supreme Court has previously ruled that states cannot ban abortion before a foetus is viable – about 23 to 25 weeks.

District prosecutors for Georgia’s four most populous counties – Fulton, Gwinnett, Cobb and DeKalb – have said they would not, or could not, prosecute women under the controversial new law.

“As District Attorney with charging discretion, I will not prosecute individuals pursuant to HB 481 [the heartbeat bill] given its ambiguity and constitutional concerns,” DeKalb County district attorney Sherry Boston told The Atlanta Journal-Constitution.

“As a woman and mother, I am concerned about the passage and attempted passage of laws such as this one in Georgia, Alabama, and other states.”

She added: “There is no language outlined in HB 481 explicitly prohibiting a district attorney from bringing criminal charges against anyone and everyone involved in obtaining and performing what is otherwise currently a legal medical procedure”.

According to the publication, the technical language of the bill means that district attorneys could potentially seek a murder charge against someone who breaches the heartbeat law.

“As a matter of law (as opposed to politics) this office will not be prosecuting any women under the new law as long as I’m district attorney,” Gwinnett County DA Danny Porter said.

He said he did not think it would be possible to prosecute a woman for either murder or unlawful abortion if she got an abortion after six weeks.

John Melvin, acting District Attorney of Cobb County, echoed this position, saying women could “absolutely not” be prosecuted under the unlawful abortion statute.

Fulton County district attorney Paul Howard “has no intention of ever prosecuting a woman under this new law", a spokesperson said, adding that he also would not prosecute abortion providers.

Georgia’s new bill does include exceptions for cases involving rape, incest, or in situations where the health of a mother is in danger.

“Planned Parenthood will be suing the State of Georgia. We will fight this terrible bill because this is about our patients’ lives,” Dr Leana Wen, president of Planned Parenthood Action Fund, said.

Georgia’s bill comes after Alabama Governor Kay Ivey signed a controversial abortion bill into law last week that is the most restrictive abortion bill in the US.

Under the law, doctors would face 10 years in prison for attempting to terminate a pregnancy and 99 years for carrying out the procedure. The abortion ban, which has been branded a “death sentence for women”, would even criminalise performing abortions in cases of rape and incest.

Ms Ivey said the new law might be “unenforceable” due to Roe v Wade but said the new law was passed with the aim of challenging that decision.

Alabama state lawmakers compare abortions in America to the Holocaust and other modern genocides in the legislation – spurring Jewish activists and abortion rights groups to rebuke the bill as “deeply offensive.”

Alabama’s new bill comes as politicians in several other states propose legislation to restrict abortion – with some 16 other states looking at new measures.

More than a dozen other states have passed or are considering versions of Georgia’s law. Kentucky, Mississippi and Ohio have also approved bans on abortion once a foetal heartbeat is detected. On Friday, Missouri lawmakers passed a bill banning abortions after eight weeks.

Groups such as the American Civil Liberties Union of Georgia vowed to sue on the day the governor signed Georgia’s heartbeat bill. It has also fuelled many in the entertainment industry to threaten to boycott Georgia.

“We’re putting lawmakers on notice: Your votes are far outside the mainstream, and we will now spend our time and energy launching a campaign to replace you,” Staci Fox, the president and CEO of Planned Parenthood Southeast, said at the time.

A federal judge blocked a heartbeat bill in Kentucky which was scheduled to come into effect instantly as it could be unconstitutional, while Mississippi passed a six-week abortion law in March that is not due to come into force until July and is also facing challenges.

Ohio passed a similarly restrictive law in 2016 which was vetoed by the governor.