Georgia GOP wants to throw women in jail for having miscarriages

Georgia Republicans are trying to force through a ban on abortion that’s so extreme, it could land you in jail for having a miscarriage.

First of all, the bill would ban abortion before most women know they’re pregnant — around six weeks — which means women would have only a week or two after a missed period to seek an abortion. The only exceptions are for rape or incest, if the traumatized victim manages to go through the rigamarole of filing a police report.

It gets even worse. Because of the way Georgia law is already written, women seeking an abortion after that point, and doctors who perform the procedure, could be thrown in jail for up to ten years.

And because an abortion is often medically identical to a miscarriage, making women criminals for having an abortion also means exposing women who have miscarriages to legal investigation and prosecution.

The radical bill has passed the state Senate with amendments and is awaiting another vote in the state House. It’s likely to be signed by Gov. Brian Kemp (who narrowly defeated pro-choice Democrat Stacey Abrams in the 2018 governor’s race, amid a cloud of scandal over anti-black voter suppression).

State Sen. Jen Jordan (D-Atlanta) blasted her Republican colleagues’ callous move in a powerful speech on Friday, during which she disclosed that she had suffered eight miscarriages.

“Yes, I am talking about stuff I don’t want to talk about in this chamber, but let me tell you something,” Jordan said. “If you’re going to get into the most private areas where women are, then you’re going to have to listen to it.”

And Jordan, who is also a lawyer, pointed out the chilling reason that her personal story about miscarriages is relevant to the debate over an abortion ban:

Any woman who suffers a miscarriage could be subject to scrutiny regarding whether or not she intentionally acted to cause that miscarriage. She would be at risk of a criminal indictment for virtually any perceived self-destructive behavior during pregnancy which could cause miscarriage, to wit: Smoking, drinking, using drugs, using legal medications; driving while under the influence, or any other dangerous or reckless conduct. And taken to its extreme, prohibitions during pregnancy could also include the failure to act, such as the failure to secure adequate prenatal medical care. Any issue of whether a woman who has participated in this risky behavior intended to cause her subsequent miscarriage — as a lawyer, I can tell you — would be a jury question. In other words, a pregnant woman who suffers a miscarriage could be subjected to criminal investigation, indictment, prosecution long before a jury is asked to determine whether she intentionally did anything to cause the loss.

Because it’s not always clear whether a pregnancy loss is due to a spontaneous miscarriage or a self-managed abortion, women actually do get arrested for miscarriage in America, today, when abortion is supposedly legal.

For instance, if your nosy friend hears about your miscarriage and suspects you really took abortion pills, she could call the police, and you could get arrested and prosecuted if your state criminalizes abortion outside of a clinical setting. Even you’re acquitted later, an arrest typically means at least some jail time, and a potentially nightmarish and expensive legal ordeal.

The new Georgia bill exposes every woman over six weeks pregnant to this threat. And it also sneaks radical new language into state law that defines a fertilized egg as a person — which makes jailing women for miscarriage more likely.

In states like Texas, fetal “personhood” language like this has been used to prosecute pregnant women — including those who aren’t seeking an abortion, and even those who are still pregnant and didn’t miscarry — because they allegedly took illegal drugs or did something else that could have endangered their wanted pregnancies. This happens even though Texas law is supposed to protect pregnant women themselves from being prosecuted for crimes like “fetal homicide.”

Jordan also pointed out that the justification for the new Georgia law, banning abortion after a fetus has a “heartbeat,” is a cruel misnomer.

“At the earliest stages of pregnancy, certain embryonic cardiac activity can be detected with a transvaginal ultrasound,” she said. “I don’t think any of the men that spoke today have ever had a transvaginal ultrasound. I have. And it is not pleasant.”

“I have laid on the cold examination table while a doctor desperately looked for a ‘heartbeat,’” Jordan said. “I have been escorted out the back door of my physician’s office so as not to upset the other pregnant women in the waiting area, my grief on full display and uncontainable. … It is not for the government or the men of this chamber to insert itself in the most personal, private, and wrenching decisions that women make every single day.”

The only thing stopping Georgia from criminalizing pregnant women is the Supreme Court’s decision legalizing abortion in Roe v. Wade. The Georgia law would probably be immediately blocked by courts after it gets signed because it’s unconstitutional under Roe, just as similar laws in other states have been blocked for the same reason.

The only thing stopping this is the Supreme Court’s decision legalizing abortion in Roe v. Wade. The Georgia law would probably be immediately blocked by courts after it gets signed because it’s unconstitutional under Roe, just as similar laws in other states have been blocked for the same reason.

But if Roe were to be overturned, these laws would go into effect. And even if Roe stays in place, laws like Georgia’s could still send pregnant women to jail.

This kind of thing already happens more than we’d like to think in America.

Between 1973 and 2005 — after abortion was supposedly legalized under Roe v. Wade — researchers have documented 413 cases in which women were arrested, prosecuted, jailed, or given a forced medical intervention because law enforcement officials thought a woman was endangering her pregnancy or had attempted to give herself an abortion. This included women who had tried and failed to commit suicide while pregnant.

And just since 2005, another 600 or more such cases have been found — largely thanks to draconian new state laws like Georgia’s.

Women’s rights have been under attack by Republicans for a long time, but the damage already done is worse than most people realize. And now GOP lawmakers are trying to make that nightmare a reality for even more women.

Published with permission of The American Independent Foundation.