Georgia legal experts: Impact unclear in granting ‘personhood’ to fetus

ATLANTA — Offices across Georgia state government have fielded calls and questions from residents concerned or confused about the state’s new anti-abortion law since it was introduced.

State employees say the phones have been ringing consistently — especially in the office of state Rep. Ed Setzler, the Acworth Republican who sponsored the law that bans most abortions and provides “personhood” status to the fetus, a change that has implications for state tax policy, population counts and even court orders.

One of the biggest questions is how much the law will cost the state.

State staff never formally estimated how much money the state would lose due to a new tax deduction allowing expectant parents to claim a fetus as a dependent, but Setzler said he asked a private accountant to provide estimates.

Setzler’s office said it has received scores of calls from people who either love or hate the so-called “heartbeat” legislation that outlaws most abortions when a doctor can detect cardiac activity, usually about six weeks into pregnancy and before many women know they’re pregnant.

But between those calls are others asking specific questions about how the law will be implemented — including what it means to grant rights to an unborn child.

Staffers said they haven’t kept specific records of the number of calls and questions asked. Typically, staffers said, they take messages and pass them on to lawmakers. It was unclear how many of those calls were returned.

House Bill 481, which goes into effect Jan. 1, is expected to be challenged in court by Planned Parenthood Southeast and the American Civil Liberties Union of Georgia.

The new law includes several personhood provisions, which extend rights to the unborn. HB 481 will allow parents to claim a fetus, once a heartbeat is detected, on their state taxes as a dependent and require state officials to count an unborn child toward Georgia’s population.

The Department of Revenue is tasked with creating the filing process for parents wishing to claim a fetus on their taxes, but a spokesman said since the law doesn’t go into effect until January, those changes have not yet been made.

The state’s Department of Audits and Accounts said it never received a request to do an evaluation of how the new law will impact the state’s tax revenue. Setzler said the private accountant estimated the state would lose between $10 million and $20 million on tax money.

No estimates have been released regarding what the state might pay in legal fees defending the law in court.

Several hypothetical situations have been posed around the idea of personhood, ranging from the legality of a pregnant woman riding in one of Georgia’s high-occupancy vehicle lanes to whether an immigrant who is in the U.S. illegally can be deported if she is pregnant.

The answers aren’t cut and dry, legal experts say.

“The full scope of potential unintended consequences at this point have to be in the category of unknown,” said Fred Smith, a constitutional law professor at the Emory University School of Law.

Emily Matson, the general counsel and board chairwoman of the anti-abortion Georgia Life Alliance, said it’s to be expected that a law as sweeping as HB 481 will cause some realignment of regulations in other areas of state code.

“The other side is trying to create hiccups in the process, but it’s standard to have to put a law into practice and modify other regulations in light of the new law,” she said.

Supporters of the legislation said they understood that establishing personhood under state law could be difficult initially.

“It may create other problems, but those can be addressed as they come up,” said state Rep. Kasey Carpenter, a Dalton Republican. “All those concerns would never override the idea that this piece of legislation was the right thing to do.”

HB 481 defines a “natural person” as “any human being including an unborn child.” That will require legal experts to look at each mention of “natural person” or “human being” in Georgia code to see what the implications might be, Smith said.

“It’s difficult with some of these hypotheticals. You have to look at other more specific state laws,” Smith said. “Different questions are going to have different answers depending on the text of the code.”

For example, Georgia code says “passenger vehicles occupied by two persons or more” can use HOV lanes and defines person as “any individual, partnership, corporation, association, or private organization of any character.”

The way the Department of Public Safety regulates state code is more specific, saying on its website that “vehicles with two or more (living and not pre-infant) persons” can use the lanes.

State Rep. Josh McLaurin, a Sandy Springs Democrat and attorney who opposed the bill, said the ramifications of establishing personhood may have to be decided in the courts.

“The absurdity of some of these hypotheticals suggests that the majority was not in a position to extend personhood to all fetuses in every respect under the law,” he said. “The bill has waded into a gray area and it would require a case-by-case analysis of each statute involving the phrase ‘natural person’ or ‘person.’ ”

Some issues — such as the rights of a fetus being carried by an immigrant in the U.S. illegally or a woman who is in prison — are regulated at the federal level and won’t change under HB 481, Smith said.

Atlanta immigration attorney Charles Kuck, however, interpreted the law differently.

“If you take the human being aspect of it to its logical conclusion, if you have a pregnant woman in custody, you couldn’t deport her,” Kuck said. “This bill must have so many consequences that were never thought of.”

Georgia’s law is one of several moving through Republican-run state governments across the country with the express purpose of challenging the U.S. Supreme Court’s Roe v. Wade decision in 1973 that guaranteed a woman’s right to an abortion until a fetus is “viable” — up until about 24 weeks of pregnancy. Georgia passed legislation in 2012 that banned abortions after 20 weeks.

ACLU of Georgia Executive Director Andrea Young said the confusion around the law proves that Roe is the most practical way to balance the rights of the fetus and the pregnant woman.

“This all goes to the basic issue — women should be trusted with these decisions and not politicians,” Young said. “There are so many issues and so many consequences and so much unpredictability.”