What could happen if abortion becomes a crime?

If the U.S. Supreme Court overturns Roe v. Wade, as a leaked draft opinion suggested it will, Georgia and 25 other states with pending bans on the books have more to consider than just medical issues.

New laws that could be allowed to take effect in a post-Roe scenario carry criminal penalties for those who seek or assist with abortions.

“There’s no doubt in my mind that this is something we should all be concerned about,” Atlanta criminal defense attorney Amanda Clark Palmer of the Garland Samuel & Loeb law firm told the Daily Report.

“We are potentially going to see laws that criminalize assisting somebody in getting an abortion,” Palmer said. In some states, a woman seeking an abortion could be charged with a crime—or subjected to civil fines, such as with the law in Texas that the U.S. Supreme Court has already allowed to take effect and other states have begun to copy.

Confusion on this point has swirled around the Georgia ban now parked at the U.S. Court of Appeals for the Eleventh Circuit awaiting an imminent SCOTUS ruling in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (2021)—the Mississippi case seeking to overturn Roe v. Wade and the subject of the leaked draft opinion.

The underlying legislation in Georgia, House Bill 481, created criminal penalties for those assisting with an abortion. The authors said they did not intend women who seek abortion services to be subject to criminal prosecution, but opponents argued that the law was unclear on that point and even suggested the opposite by creating affirmative defenses for women in certain circumstances. The law offered “a defense to prosecution” for several instances, including a woman seeking an abortion reasonably believing it was “the only way to prevent a medical emergency.” The Georgia law also created a defense to the crime of abortion for cases of rape—if the crime has already been reported to police—and for “medically futile” pregnancies.

After Gov. Brian Kemp signed the law, several district attorneys said they would not use it to prosecute women seeking abortion or their doctors or other helpers. But other DAs said they would and that their colleagues did not have the right to pick and choose which laws to enforce.

Because the Georgia law addressed abortion as “the homicide of an unborn child,” some prosecutors said they would have to treat it as a crime of murder.

“I think it’s going to have unintended consequences that lawmakers are not anticipating.” Palmer said. “All that’s going to take away money and time and resources from cases we need to prosecute.”

Andrew Fleischman, an appellate criminal defense attorney with Ross & Pines in Atlanta, said the same in an opinion piece written for the Daily Report in 2019 shortly after Georgia’s six-week abortion ban passed.

“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,” Fleischman said. “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.”

Georgia’s abortion ban conveyed personhood on any embryo with detectable cardiac activity—leading to the possibility of murder charges, Fleischman said. He took little comfort from some DAs’ pledges not to prosecute.

“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,” he said. “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.”

The debate over the criminal aspects of the abortion ban in Georgia largely cooled in July 2020 after Judge Steve Jones of the U.S. District Court for the Northern District of Georgia granted summary judgment to SisterSong Women of Color Reproductive Justice Collective and other groups challenging the law. Jones signed an injunction blocking enforcement of the ban. Attorney General Chris Carr appealed to the Eleventh Circuit, which is waiting to see what SCOTUS does next.

Meanwhile, the National Association of Criminal Defense Lawyers has suggested now would be the time to read the organization’s 48 pages of research on laws across the country criminalizing abortion. The 2021 report, titled “Abortion In America: How Legislative Overreach Is Turning Reproductive Rights Into Criminal Wrongs,” was produced by the group’s Women in Criminal Defense Committee. The authors include: NACDL past president Nina Ginsberg, a founding partner at DiMuroGinsberg in Alexandria, Virginia; board member Lindsay Lewis, a partner with Dratel & Lewis in New York; and board representative to the executive committee C. Melissa Owen, a founding partner of Tin Fulton Walker & Owen in Charlotte, Chapel Hill and Raleigh, North Carolina.

Here’s an excerpt of what the authors had to say about the Georgia law.

“Georgia has also redefined personhood through its ‘heartbeat’ bill to include ‘an unborn child with a detectable human heartbeat,’ with similar intended consequences. The law, which was scheduled to go into effect on January 1, 2020, is currently enjoined. Were Georgia’s ‘heartbeat’ bill to go into effect and the definition of ‘personhood’ expanded, the state would likely see a large uptick in serious felony prosecutions.”

Georgia is not the only state to pass a law granting legal personhood status to embryos— a popular strategy in recent years among legislators and lobbyists seeking a way to overturn Roe v. Wade. Other states with personhood measures include: Arkansas, Kentucky, Mississippi, Alabama and South Carolina, according to the report.

“Make no mistake, the United States is on the precipice of a shocking and dramatic expansion of its criminal legal system,” Ginsberg said in a statement. “With the Supreme Court poised in the fast-approaching term to revisit Roe in the Mississippi case of Dobbs v. Jackson Women’s Health Organization, it is critical that the American people clearly understand the vast criminalization efforts—and the repercussions to so many of us—that are already well underway in many states across the nation.”

The report is available to download free on the NACDL website.