Georgia State University Law Review Volume 36 Issue 1 Fall 2019 Article 10 12-1-2019 HB 481 - Heartbeat Bill Michael G. Foo Georgia State University College of Law, [email protected] Taylor L. Lin Georgia State University College of Law, [email protected] Follow this and additional works at: https://readingroom.law.gsu.edu/gsulr Part of the Health Law and Policy Commons, Privacy Law Commons, and the State and Local Government Law Commons Recommended Citation Michael G. Foo & Taylor L. Lin, HB 481 - Heartbeat Bill, 36 GA. ST. U. L. REV. 155 (2019). Available at: https://readingroom.law.gsu.edu/gsulr/vol36/iss1/10 This Peach Sheet is brought to you for free and open access by the Publications at Reading Room. It has been accepted for inclusion in Georgia State University Law Review by an authorized editor of Reading Room. For more information, please contact [email protected]. Foo and Lin: HB 481 - Heartbeat Bill PERSONS AND THEIR RIGHTS Persons and Their Rights: Amend Chapter 2 of Title 1 of the Official Code of Georgia Annotated, Relating to Persons and Their Rights, so as to Provide that Natural Persons Include an Unborn Child; to Provide that such Unborn Children Shall Be Included in Certain Population Based Determinations; to Provide Definitions; Offenses Against Public Health and Morals: Amend Article 5 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, Relating to Abortion, so as to Provide Definitions; to Revise the Time when an Abortion May Be Performed; to Provide for Exceptions; to Provide for the Requirements for Performing an Abortion; to Provide for a Right of Action and Damages; to Provide for Affirmative Defenses; Alimony and Child Support: Amend Chapter 6 of Title 19 of the Official Code of Georgia Annotated, Relating to Alimony and Child Support, so as to Provide a Definition; to Provide a Maximum Support Obligation for Certain Circumstances; Parent and Child Relationship Generally: Amend Chapter 7 of Title 19 of the Official Code of Georgia Annotated, Relating to Parent and Child Relationship Generally, so as to Provide that the Right to Recover for the Full Value of a Child Begins at the Point When a Detectable Human Heartbeat Exists; Woman’s Right to Know: Amend Chapter 9A of Title 31 of the Official Code of Georgia Annotated, Relating to the “Woman’s Right to Know Act,” so as to Provide for Advising Women Seeking an Abortion of the Presence of a Detectable Human Heartbeat; to Provide for the Content of Certain Notices; to Repeal Certain Penalties; Physician’s Obligation in Performance of Abortions: Amend Chapter 9B of Title 31 of the Official Code of Georgia Annotated, Relating to Physician’s Obligation in Performance of Abortions, so as to Require Physicians Performing Abortions to Determine the Existence of a Detectable Human Heartbeat Before Performing an Abortion; to Provide for the Reporting of Certain Information by Physicians; Income Taxes: Amend Chapter 7 of Title 48 of the Official Code of Georgia Annotated, Relating to Income Taxes, so as to Provide that an Unborn Child with a Detectable Human Heartbeat is a Dependent Minor for Income 155 Published by Reading Room, 2019 1 Georgia State University Law Review, Vol. 36, Iss. 1 [2019], Art. 10 156 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 36:1 Tax Purposes; to Provide for Legislative Findings; to Provide for Related Matters; to Provide for Standing to Intervene and Defend Constitutional Challenges to this Act; to Provide a Short Title; to Provide for Severability; to Provide an Effective Date; to Repeal Conflicting Laws; and for Other Purposes CODE SECTIONS: O.C.G.A. §§ 1-2-1 (amended); 16-12-141 (amended); 19-6-15 (amended); 19-7-1 (amended); 31-9A-3, -4, -6.1 (amended); 31-9B-2, -3 (amended); 48-7-26 (amended) BILL NUMBER: HB 481 ACT NUMBER: 234 GEORGIA LAWS: 2019 Ga. Laws 711 SUMMARY: The Act adds an unborn child with a detectable human heartbeat to the definition of a natural person and includes such unborn child in state population counts. The Act defines abortion, prescribes when abortions may be performed, provides exceptions to abortion performance limitations, establishes requirements for performing an abortion, and provides for a right of action, damages, and affirmative defenses. The Act permits alimony and child support payments starting when an unborn child has a detectable human heartbeat. Parents have the right to recover the full value of a child’s life when a detectable human heartbeat exists. The Act requires that women seeking an abortion be advised that a detectable human heartbeat exists, provides for certain notices to the woman, and repeals certain penalties. The Act requires physicians who perform https://readingroom.law.gsu.edu/gsulr/vol36/iss1/10 2 Foo and Lin: HB 481 - Heartbeat Bill 2019] LEGISLATIVE REVIEW 157 abortions to determine the presence of a detectable human heartbeat before performing an abortion and requires physicians to report certain information concerning such abortions. The Act considers an unborn child with a detectable human heartbeat a dependent minor for income tax purposes. The Act also provides for legislative findings and provides standing to intervene and defend constitutional challenges to the Act. The Act provides a short title, provides for severability of claims, provides an effective date, and repeals conflicting laws. EFFECTIVE DATE: January 1, 2020 History House Bill (HB) 481 is one of many abortion regulations introduced and enacted in Georgia. In the mid-nineteenth- and early twentieth-century, abortions were illegal in the United States (U.S.).1 The rise of the women’s rights movement in the 1960s was a driving force behind the major changes in abortion laws across the country.2 By 1973, when the United States Supreme Court announced its decision in the landmark abortion case Roe v. Wade, seventeen states had legalized abortion.3 In 1968, Georgia enacted a criminal abortion law generally patterned after the American Law Institute’s 1962 Model Penal Code, which replaced more than ninety years of statutory law.4 By 1973, the Model Penal Code’s section on abortion served as a template 1. Listeners Ask About the History of U.S. Abortion Laws, NPR (June 5, 2019, 5:08 AM), https://www.npr.org/2019/06/05/729874374/listeners-ask-about-the-history-of-u-s-abortion-laws [https://perma.cc/VDR2-JQRM]. 2. Id. 3. Id. 4. Doe v. Bolton, 410 U.S. 179, 182 (1973). Published by Reading Room, 2019 3 Georgia State University Law Review, Vol. 36, Iss. 1 [2019], Art. 10 158 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 36:1 statute for nearly a quarter of the states with abortion laws.5 The Model Penal Code abortion statute generally outlawed abortions subject to three exceptions: (1) carrying the pregnancy to term would cause harm to the mother, (2) the fetus was unlikely to survive after birth, and (3) the pregnancy was the result of rape or incest.6 Georgia’s 1968 abortion law tracked the Model Penal Code’s structure, but it provided no exception for incest.7 Instead, Georgia’s law provided for abortions only in cases of rape, severe fetal deformity, or instances of severe or fatal injury to the mother.8 Further restrictions on abortion included a residency requirement, a written confirmation by three physicians and a three-member special committee approving justification for the abortion for one or more of the statutorily enumerated reasons, performance of the abortion by a board-licensed facility under the approval of a three-person committee at that hospital, and certifications in situations of rape.9 The 1968 abortion law and its specific restrictions on abortion were the focus of the Supreme Court case Doe v. Bolton, decided as a companion case to the seminal abortion case Roe v. Wade.10 In Doe, the Court acknowledged states’ rights to “readjust its views and emphases in the light of the advanced knowledge and techniques of the day.”11 Despite this, the Court struck down Georgia’s abortion law as unconstitutional, finding that certain restrictions violated the Privileges and Immunities Clause of the Constitution and that many restrictions were not rationally related to the regulation of abortions.12 Together with Roe, Doe reaffirmed the Supreme Court’s holding that terminating a pregnancy via abortion is a constitutionally 13 protected right. 5. Id. 6. Carl W. Tyler, Jr., The Public Health Implications of Abortion, 4 ANN. REV. PUB. HEALTH 223, 245 (1983). 7. Id. 8. Doe, 410 U.S. at 179; see also Tyler, supra note 6, at 245. 9. Doe, 410 U.S. at 183–84. 10. See id. at 179; see also Roe v. Wade, 410 U.S. 113 (1973). The same 7-2 majority that struck down provisions of Texas law in Roe ruled in Doe. Doe, 410 U.S. at 179; Roe, 410 U.S. at 166. 11. Doe, 410 U.S. at 191. 12. Id. at 199, 200. 13. Id. at 189. Although the Court reaffirmed this constitutional right in both cases, the Court was careful to note that such a right is not absolute. See id. https://readingroom.law.gsu.edu/gsulr/vol36/iss1/10 4 Foo and Lin: HB 481 - Heartbeat Bill 2019] LEGISLATIVE REVIEW 159 The next major development in Georgia abortion law was the passage of the “Woman’s Right to Know Act,” signed into law by Governor Sonny Perdue (R) on May 10, 2005.14 The Georgia General Assembly passed the Woman’s Right to Know Act to ensure women made an informed decision when choosing to have an abortion.15 The Woman’s Right to Know Act permitted the performance of an abortion only after the patient gave voluntary, informed consent to the procedure at least twenty-four hours in advance, except in cases of medical emergency.16 To give informed consent, the Act required that the pregnant woman be provided with certain accurate, objective information about abortions and pregnancy before proceeding with the procedure.17 Such information included: the medical risks of the procedure, the probable gestational age of the unborn child, the medical risks of carrying the pregnancy to term, the medical assistance available for childcare, and information about the father’s liability for child support.18 Following the Woman’s Right to Know Act, the Georgia General Assembly passed legislation in 2012 that prohibited the performance 19 of abortions after twenty weeks.