How could Georgia’s 'heartbeat' bill apply to New York?

This year, abortion rights are on the march in New York: Gov. Andrew Cuomo signed the Reproductive Health Act into law, which expanded abortion access, and New York City became the first U.S. city to commit to publicly funding abortion. A third of the money in that program will go to helping women from out of state to access New York City’s abortion services.

There may be a lot of competition for those dollars. Elsewhere in the country, states including Missouri, Alabama and Georgia have recently placed extremely rigid restrictions on the timeframe in which women can obtain a legal abortion. The new law in Georgia reclassifies fetuses with a detectable heartbeat as “natural persons” under Georgia law. This, coupled with the lack of a clause explicitly exempting women from prosecution, led to an online panic that Georgia prosecutors would criminally charge women for getting abortions.

Slate legal reporter Mark Joseph Stern argues that the Georgia law, by giving fetuses legal personhood, implied that terminating a pregnancy after a fetal heartbeat can be detected would constitute murder. And, according to Stern, traveling outside of Georgia to access abortion services after the 6- to 8-week window had closed could be considered conspiracy to commit murder. “If a Georgia resident plans to travel elsewhere to obtain an abortion, she may be charged with conspiracy to commit murder, punishable by 10 years’ imprisonment,” he writes. “An individual who helps a woman plan her trip to get an out-of-state abortion, or transports her to the clinic, may also be charged with conspiracy.”

So, as New York encourages women to come here to get an abortion after their legal window has passed at home, could they be prosecuted in Georgia after the law takes effect in 2020? And what about New Yorkers, such as medical professionals, who assist them? Could they face charges in Georgia?

Stern’s argument has been widely disputed – most adamantly by Planned Parenthood, but also by the law’s supporters, such as National Review’s David French. Planned Parenthood representatives are resolute that the laws will be challenged in court before they can be implemented. But prosecutors across the state of Georgia disagree about whether or not the bill allows for women to be prosecuted at all.

The law in Georgia would not go into effect until January 2020, so all analyses remain hypothetical until then. Albany Law School professor Vincent Bonventre said that Stern has a point. “On its face, the crime of conspiracy is a plan, or an agreement to commit a crime,” he told City & State. “But the fact of the matter is, it would not be a crime in New York.” Therefore, typically, Georgia would have no legal authority to prosecute even their own residents for it. Bonventre likens the situation to individuals planning to go from New York, where recreational marijuana use is illegal, to Colorado, where recreational use is legal, to smoke marijuana.

However, the change of personhood status for fetuses adds additional complications. “The question is,” Bonventre said, “if someone plans to go elsewhere to kill a resident of Georgia, somebody that Georgia views as a person, does Georgia have a significant interest to prosecute that person?”

Columbia Law professor Carol Sanger said that prosecution would be unlikely because there are no passages in the bill that explicitly reference what happens if a woman goes out of state to get an abortion.

However, a district attorney in a conservative jurisdiction might try to test the limits. And Stern pointed to Hillman v. State of Georgia as an example of a Georgia prosecutor attempting to prosecute a woman for an unlawful abortion under a prior statute. The defendant was acquitted due to the judge’s interpretation that the Georgia laws at the time “(did) not criminalize a pregnant woman's actions in securing an abortion, regardless of the means utilized.” But the way Stern and bill opponent Georgia State Sen. Jen Jordan see it, the “natural person” clause comes into conflict with the prior case law and offers an opening for prosecutorial discretion. “What Stern describes is not impossible and will probably be tested out by somebody that is trying to get reelected in the right district,” Sanger said.

Of course, before any impact reaches New York, the matter will likely play out in federal court, as the law would plainly violate current jurisprudence on a women’s right to abortion under the U.S. Constitution. (Anti-abortion advocates hope the U.S. Supreme Court’s conservative majority upholds the law and overturns Roe v. Wade.) And that is something New York has no control over.