Georgia 2023 HB 496
The Georgia Prenatal Equal Protection Act
Overview
Filed by Georgia State Representative Emory Dunahoo
Provides Equal Protection to Preborn Children
If we truly believe that a fetus is a person made in the image of God, then to be consistent with the Constitution and God’s word, the laws which protect human beings who are born must equally protect those who are not yet born.
“No person shall be deprived of life, liberty, or property except by due process of law." Georgia Constitution Art. I, § I, Para. I.
“Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws." Georgia Constitution Art. I, § I, Para. II.
“No state shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution, 14th Amendment.
“There are inconsistencies between Fourteenth Amendment status and the typical abortion statute. If the fetus is a person, why is the woman not a principal or an accomplice? If the fetus is a person, may the penalties be different?” Supreme Court of the United States. Roe v. Wade, 410 U.S. 113, 157-58 n. 54 (1973).
“So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets.” The Golden Rule. Matthew 7:12.
“You shall love your neighbor as yourself.” Mark 12:31.
“You shall not be partial in judgment.” Deuteronomy 1:17.
Does the bill criminalize women?
No. The bill criminalizes the act of knowingly and willfully causing the death of a preborn child.
To deter such conduct and to provide equal protection of the laws, the bill does prohibit everyone, including pregnant mothers, from engaging in the unlawful act of prenatal homicide.
Once the bill is passed and becomes effective, the justice system would determine on a case-by-case basis whether any report of suspected prenatal homicide would be investigated and prosecuted and for what charge, and whether anyone would be convicted and sentenced. This justice system includes:
Law enforcement
Prosecutors
Grand juries
Trial juries
Judges
Multiple appellate courts
The Parole Board
All defendants would have the right to an attorney, the right to remain silent, and all other constitutionally required due process. The state would bear the burden of proving its case beyond a reasonable doubt.
Finally, before any sentence could be imposed upon any defendant, the people participating in that justice system process would be required to be in nearly unanimous agreement that the process and outcome were just.
FAQs
Didn’t the Living Infants Fairness and Equality (LIFE) Act (the “heartbeat bill”) already effectively outlaw abortion in Georgia?
Sadly, no. It only outlawed some abortions performed prior to a detectable heartbeat.
The LIFE act permits physicians to perform abortions before a detectable heartbeat and in cases of rape and incest.
Additionally, Georgia law allows mothers to obtain abortion pills to perform DIY abortions at home.
The following video is from a pro-abortion service helping women obtain abortion pills.
While the number of abortions being done by mothers at home since Dobbs is still uncertain, there is reason to believe the number is very large.
According to the New York Times, “As states banned or restricted abortion this summer, the number of American women ordering abortion pills from overseas jumped significantly — enough to offset most of the drop in legal abortions.”
Would the bill prohibit IVF?
No. Fertility specialists may perform in vitro fertilization, but their procedures must not willfully destroy human beings. This would require a change in procedure for any IVF clinic where the current practice creates a large number of human embryos and then destroys the excess. You can learn more about this and other IVF issues here.
Would the bill ban contraceptives?
No. The bill does not ban contraceptives (i.e. drugs or devices to prevent fertilization). The bill would ban the use of abortifacients after fertilization if knowingly and willfully used to cause the death of the child.
Could anyone who has been involved with an abortion in the past be prosecuted?
No. Section 3 of the bill explicitly prohibits retroactive enforcement, as do the Georgia and U.S. constitutions.
Could the bill punish women who have had miscarriages?
No. Nothing in the bill would in any way apply to accidental or natural deaths. Existing Georgia law also already has a provision that would prevent prosecution of miscarriages (16-2-2 (“Effect of misfortune or accident on guilt”)).
Could a mother forced into an abortion be convicted?
No. Section 2 explicitly provides that a mother forced into an abortion by coercion is not subject to criminal liability. Instead, the bill would allow for prosecution of the person who coerced her.
Would the bill allow doctors to deal with medical emergencies like ectopic pregnancies?
Yes. Section 3 explicitly allows for that.
SECTION-BY-SECTION
Bill Section 1
While not legally binding, these legislative findings serve to describe some of the constitutional foundations of the bill as well as providing a general summary of its effects.
Bill Section 2
A mother forced into an abortion by someone using or threatening serious physical violence is not guilty.
Bill Section 3
Subsection (a).
This provides a short title for the bill, the Georgia Prenatal Equal Protection Act.
Subsection (b).
Every state already has existing laws making the willful killing of a person a crime. To provide preborn children the equal protection of those existing laws against homicide, this simply specifies that the terms “person” and “human being” include a preborn child.
The effect of this also makes it illegal to encourage or pressure a mother to abort. A person who did so would also become a party to the crime. See O.C.G.A. § 16-2-20.
Subsection (c).
This makes clear that all existing due process protections for those accused of homicide of a born person would also apply to those accused of homicide of an unborn person, such as:
Presumption of Innocence. A person is presumed innocent until the state proves beyond a reasonable doubt that the person is guilty.
Mistake of Fact Defense. A person who misunderstands a material fact of what they are doing is not guilty if such mistake negates the existence of the mental state required by the offense.
Coercion Justification. A person who commits a criminal act under threat of serious physical violence or death is not guilty. See Section 2.
Laws of Parties. Everyone willfully involved with the homicide can be prosecuted, including an abortionist and anyone who pressures the mother into the abortion.
Immunities. For example, prosecutors could grant immunity to mothers to testify against the abortionist or others.
Clemencies. The Parole Board can exercise executive clemency and commute/reduce the sentence of or completely pardon a person, even if the person had been lawfully convicted and sentenced. See Ga. Const. Art. IV, § II, Para. II.
Subsection (d).
Medical care or treatment provided with the requisite consent by a licensed physician to avert the death of a pregnant female that results in the accidental or unintentional injury or death of her unborn child is not a crime when all reasonable alternatives to save the life of the unborn child were attempted or none were unavailable.
This provision is consistent with the Dublin Declaration.
Subsection (e).
This gives the state attorney general concurrent jurisdiction to prosecute in the event local prosecutors refuse to enforce the law. There is precedent for this in Georgia. See O.C.G.A. § 16-5-46(h).
Subsection (f).
This provides that other abortion regulations and any exceptions to them do not limit or otherwise govern enforcement of the criminal homicide and assault provisions to protect prenatal persons.
Subsection (g).
This makes it extremely clear that the bill cannot be used to retroactively prosecute people for abortions that took place in the past.
Retroactive prosecution would also violate Article I, Section 9, Clause 3 of the U.S. Constitution, as well as Article I, Section I, Paragraph X of the Georgia Constitution.
Bill Sections 4 and 5
These sections remove language allowing for abortion from assault and battery laws.
Bill Section 6
This part of the bill provides for equal protection of the civil laws.
Bill Section 7
This is a standard section in every Georgia bill.