Georgia as abortion battleground

Our state is poised to become national testing ground for 20-week abortion cutoff

Toward the end of a legislative hearing last week on the latest bill seeking to further restrict abortion rights in Georgia, a young woman approached the microphone cradling an infant. In a voice choked with emotion, she testified about receiving some devastating news midway through an earlier pregnancy: The baby wasn't developing normally and wouldn't survive. Her doctors recommended she terminate the pregnancy.

Instead, she resolved to carry the baby to term. Two weeks after being born, and surrounded by its parents and older siblings, the sickly infant died. Still, the woman told lawmakers, she felt she'd done the right thing in giving her baby a few days as part of a loving family.

If she hadn't already made clear she was speaking in favor of House Bill 954, a listener easily might have been confused about where the woman stood on the issue. After all, she'd gotten medical advice about her pregnancy, consulted with her husband and family, and made a deeply personal decision that was right for her. How was that not an argument for preserving a woman's right to choose?

When it comes to abortion in America, things are rarely simple or logically consistent. Rather, personal belief and religious faith hold sway — which makes the issue so ripe for political exploitation as the ultimate wedge issue.

But, as often happens in politics and other facets of modern life, be careful what you wish for.

Passed out of committee this past Monday, HB 954 at press time appeared headed for a House vote this week. The fact that it's supported by Speaker David Ralston, R-Blue Ridge, has even pro-choice lobbyists predicting it will be the first significant restriction on abortion rights in Georgia since the 24-hour "waiting period" on abortions passed in 2005.

Like that earlier measure, which mandated that women wait at least a day between an abortion clinic consultation and the procedure, the current legislation is an off-the-shelf bill that's being rolled out across the country by pro-life conservatives, one state assembly at a time.

If HB 954 becomes law, Georgia would become the seventh state since 2010 to prohibit elective abortions after the 20th week of pregnancy. Georgia now allows abortions up to 26 weeks and even later if the mother's health is in danger, although the new bill would also raise that standard by requiring that the woman is at risk of death or "irreversible physical impairment" if the pregnancy were to continue. The bill also diverges from current state law in declaring that the woman's mental and emotional condition — even if she attempts suicide — would not be considered grounds for obtaining an abortion.

As one pro-life activist testified at the Feb. 24 hearing, the 20-week abortion cutoff law has not yet been successfully challenged in the six, mostly Midwestern, states where it's been passed. But Tanya Washington, a Georgia State University law professor who also spoke at the gathering, says that's largely due to a legal technicality.

In those other states, which include Kansas and Oklahoma, there were no clinics that performed abortion past 20 weeks — at least, not since the 2009 assassination of Wichita doctor George Tiller. Because late-term abortions were not available in those jurisdictions, Washington explains, there are few women with the legal standing to file suit. One challenge filed in Idaho is still pending.

There are, however, at least two clinics in Atlanta that perform late-term abortions, which sets the stage for the state to become the national testing ground for the 20-week law.

"It's very conceivable that Georgia could be the first state to litigate this kind of law," says Elizabeth Nash, state policy analyst for the Guttmacher Institute, an offshoot of Planned Parenthood that researches issues related to abortion rights.

What Nash and others don't understand is why bill writers have become fixed on 20 weeks, which is the midpoint of a typical pregnancy. The standard set by the U.S. Supreme Court in Roe v. Wade and subsequent rulings is that abortion rights are protected until "viability," defined as the point at which a fetus could survive outside the womb. Viability usually occurs around the end of the second trimester, or about 26 weeks into pregnancy, but the Court has never imposed an arbitrary deadline.

Georgia's HB 954 and similar measures claim that the state has an interest in protecting the unborn after 20 weeks because that's when a fetus starts to feel pain, but Nash says the medical consensus doesn't back up that contention. Just as important, a fetal-pain timeline has not been recognized by the courts.

However, 20 weeks does appear to have some significance. It typically takes from 18 to 20 weeks before a baby's organs have formed sufficiently to be seen through ultrasound imaging. And an amniocentesis, the procedure used to determine a baby's sex and test for many fetal abnormalities, is not usually administered until about 20 weeks in.

"A lot of these tests results don't come back until after 20 weeks are passed," Nash says. "Women typically don't find out about problems with their baby until around or after 20 weeks."

Can it be mere coincidence, then, that HB 954 and similar measures draw the line at 20 weeks — and provide no exception for severe fetal anomalies, such as Down syndrome, much less for rape or incest?

In terms of real-world impact, HB 954 would bring only marginal change. The vast majority of abortions are performed early in the pregnancy; only about 1.5 percent of abortions occur past 20 weeks. But even if the bill is intended to force a handful of women to give birth to children who are mentally and physically disabled, it represents the latest attempt by pro-life activists to chip away at abortion rights.

Law professor Washington predicts that if the Georgia bill passes and is signed into law, it would result in a costly and unsuccessful legal battle for the state, unlikely even to reach the Supreme Court on appeal. But other pro-choice activists and observers aren't as confident, considering the rightward turn the Court has taken in recent years.

Says Nash: "I think both sides are a little wary of the Supreme Court right now."