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Georgia’s abortion ban counts a fetus as a person. And now, so does its tax code.
The state’s Department of Revenue announced this week that “any unborn child with a detectable human heartbeat” can be claimed as dependent, providing a $3,000 tax exemption for each pregnancy within a household, months before the child is born. Georgia’s law bans most abortions after six weeks, which is usually around when doctors can begin to detect fetal cardiac activity.
The announcement marks a new frontier of anti-abortion policymaking in a post-Roe America, where conservative lawmakers have moved beyond banning abortion and are now trying to expand the legal rights and protections afforded to a fetus under “fetal personhood” laws. Georgia, Alabama and Arizona have passed abortion bans that include language broadly defining a fetus as a person.
Separately, nearly 40 states, including Texas and California, define a fetus as a person in cases involving homicide. For example, Scott Peterson in 2004 was convicted in California of murdering his wife and unborn child. His wife, Laci Peterson, was eight months pregnant when she was killed.
Georgia’s abortion law goes further than any other fetal personhood provision. Called the Living Infants Fairness and Equality, or LIFE, Act, it prohibits abortion after six weeks and explicitly recognizes the fetus as a person.
A federal judge struck down the legislation last summer, finding that it violated a woman’s constitutional right to an abortion. The appeals court delayed a final decision, pending a ruling from the U.S. Supreme Court.
After the Supreme Court overturned Roe v. Wade on June 24, a three-judge panel from the 11th U.S. Circuit Court of Appeals handed Georgia conservatives their long-anticipated victory, allowing the abortion restrictions to take effect.
In the appeals court’s July 20 ruling, Chief Judge William Pryor wrote that “a person of reasonable intelligence is capable of understanding that the ‘core meaning [of]’ the provision is to expand the definition of person to include unborn humans who are carried in the womb of their mother at any stage of development.”
Gov. Brian Kemp, who signed the law in 2019, celebrated the court’s decision.
“Georgia is a state that values and supports life at all stages — and the Georgia LIFE Act and this provision both reflect that commitment,” a spokesperson for Kemp said.
State Rep. Ed Setzler, a Republican sponsor of the law, said in a leaked 2019 video that the ultimate goal of the law is to have the Supreme Court acknowledge the personhood of a fetus.
“It is about establishing personhood of the unborn child, in the tax code, for child support for mothers, in our census counts, across our code, so that we can lay the foundation that no other state in the nation in the last 46 years has ever done, which is to establish the personhood of this child, and we’re going to take this to the highest court in the land,” Setzler said in the video.
Setzler did not respond to requests for comment.
Georgia’s push to recognize a fetus as a person could lay the blueprint for other conservative states, which have not yet clarified the meaning and effects of such an approach, legal experts said.
“The anti-abortion movement has always been a personhood movement, there was just no consensus on what that actually meant,” said Mary Ziegler, a law professor at the University of California, Davis, who has written several books on abortion and the law.
Before the demise of Roe, conservatives were united around the singular goal of restricting abortion access. But Ziegler says the anti-abortion movement is struggling to find consensus on what fetal personhood means in a post-Roe legal landscape.
“Nobody has really worked out, how do you enforce personhood beyond just ‘you can’t have an abortion,’” she said. “Georgia is starting to work that out, but they’ve really only looked at a handful of situations. How do you enforce this in HOV lanes? Do you give a fetus its own attorney? There are so many questions left open.”
Last month, a pregnant Texas woman ticketed for driving in the HOV lane alone argued that her fetus counted as a person under the state’s abortion ban. Texas’ abortion ban does not included fetal personhood, but its penal code does.
Georgia’s abortion law also allows the mother to collect child support to cover the cost of “direct medical and pregnancy related expenses” before the child is born.
Democrats said the law might also expose women who experience miscarriages to unknown consequences.
“So what happens when you claim your fetus as a dependent and then miscarry later in the pregnancy, you get investigated both for tax fraud and an illegal abortion?” tweeted Lauren Groh-Wargo, campaign manager of the Democratic candidate for governor of Georgia, Stacey Abrams.
Monday’s announcement says taxpayers who claim the new deduction may be asked to provide medical records or documentation of the pregnancy. The Revenue Department has not clarified if and how families who lose a pregnancy might protect themselves from allegations of fraud.
Specific instructions on how to claim a fetus on a tax return are expected later this year.
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