Part 1: What Happens in Georgia After Dobbs?
As part of our commitment to our hospital and physician clients, we are publishing a series of articles discussing the practical legal effects on hospitals and physicians following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization which reversed Roe v. Wade and returns regulation of abortion access to the states.
In Part 1 of this series we address the current status of the provision and regulation of abortion in the state of Georgia. As this is an area of rapid development, we advise hospitals and providers to operate with flexibility in an evolving landscape of both state and federal laws.
Georgia Law on Abortion Immediately Following Dobbs
At the time of publication, abortion remains legal in Georgia until a fetus is at 20 weeks’ gestation. In 2019, Governor Kemp signed HB 481, amending Georgia’s abortion laws. However, HB 481 was found unconstitutional in the District Court for the Northern District of Georgia. That ruling was appealed to the 11th Circuit, which stayed the appeal pending the outcome of Dobbs. Following the Dobbs decision, Georgia’s Attorney General requested that the 11th Circuit move forward with the appeal and reverse the decision of the Northern District, thus permitting HB 481 to go into effect. The Court has requested further briefing with direction to submit briefs before the end of July. HB 481 could go into effect in early August, if not before.
Content and Requirements of HB 481
HB 481 does two main things. First, it defines a “natural person” to include any unborn child at any stage of development who is carried in the womb.
HB 481’s other primary provisions prohibit abortion if a fetus has fetal cardiac activity detectable via ultrasound. This is medically recognized to occur at or around six weeks’ gestation, but the precise timeline can vary between pregnancies. As defined by HB 481, “abortion” does not include the termination of an ectopic pregnancy or removal of the remnants of a miscarriage or stillbirth that occurred naturally.
HB 481 also permits abortion in certain other scenarios even after fetal cardiac activity is detected. Exceptions will be made if 1) an abortion is necessary to avert the death of the pregnant person or avert serious risk of substantial and irreversible physical impairment of a major bodily function (except that mental health is excluded from the definition of major bodily function); 2) if the pregnancy is medically futile (meaning that there is an “irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth”); or 3) in the event of rape or incest, but only if the abortion is performed before 20 weeks’ gestation and a police report has been made. All abortions described in this paragraph occurring after the first trimester must be performed in a hospital, ASC, or licensed abortion facility by a licensed physician.
In conducting an abortion, as permitted by the laws, if the child is capable of sustained life, “medical aid then available shall be rendered.” From a medical perspective, this provision is fairly meaningless. Typically, it would be the standard of care to deliver (not abort) a viable baby absent a fatal fetal abnormality that would require an abortion to save the life of the pregnant person and where delivery could not be attempted for a medical reason. Neither HB 481, other law, nor case law clarifies what “medical aid” could be rendered to an aborted fetus.
Requirements in O.C.G.A. § 31-9A-3 regarding a 24-hour wait period remain unchanged. The physician is not required to perform an ultrasound to determine gestational age “in the case of medical emergency or when a pregnancy is diagnosed as medically futile.”
Anticipated Effects on Medical Scenarios under HB 481
While the language of HB 481 is clear, how certain common medical scenarios should be handled under the law is not. HB 481 includes an exception for abortions that are necessary to save the life of the pregnant person or avert impairment of a major bodily function, but neither lawmakers nor courts have not opined on the details of this exception. One obvious and immediate issue is that the law doesn’t say how serious the risk of life should be—great than 50% chance of death? 90%? How long are physicians supposed to wait for a condition that will be life-threatening, but isn’t yet? How close to death must the pregnant person be? We believe that the law supports the medical judgment of the physician, particularly in cases where an abortion in necessary to save the life of the pregnant person. Physicians should take particular care to document why the abortion was medically necessary to save the life of the pregnant person and also document what the probable outcome of a failure to perform the abortion would be.
Such scenarios could include the following:
- A patient’s water breaks pre-viability and failure to perform an abortion will result in sepsis, is the abortion necessary to save the life of the pregnant person.
- A pregnant person is diagnosed with an aggressive cancer early in the pregnancy and cannot undergo certain cancer treatments while carrying the child and due to the lack of treatment may die (or where cancer treatment will likely result in a miscarriage).
- A pregnancy that is unlikely to be viable and likely to require a hysterectomy due to fetal abnormality resulting in the patient’s inability to carry children in the future, which ability could be considered a major bodily function.
- A placental abruption occurs and the condition is not life threatening today, but will be by next week.
We believe the plain meaning and common sense interpretation of the language of HB 481 should not prohibit an abortion in each of the above scenarios, subject to the physician’s medical judgment and documentation of his or her decision-making. It is not possible to predict how a local prosecutor would view a specific situation, and he or she could argue that an abortion is not necessary at that particular time under the particular circumstances. That, however, would seek to elevate the judgment of a judicial advocate for that of a physician. Our recommendation to physicians is to use their best medical judgment and document their decision and medical reasoning with utmost precision. This is consistent with sound professional practice and should be given deference by the courts.
There will be cases where an abortion may have been recommended pre-Dobbs, but physicians may hesitate post-Dobbs. For example, a pregnancy may exacerbate – or is expected to exacerbate – a pre-existing cardiac condition where continuation of the pregnancy will be dangerous but is not certain to result in death. Again, these decisions should be made by using the physician’s best medical judgment having open and informed conversations with the patient, and all discussions and considerations should be documented as thoroughly as possible, including informed consent.
Navigating Miscarriage or Stillbirth
Physicians will have patients who suffer a miscarriage or who have a stillborn child. These patients, and their physicians, may wonder if there can be liability under HB 481. The short answer is that the definition of “abortion” is defined to exclude a miscarriage or stillbirth that occurs naturally. Obstetricians and maternal fetal medicine specialists should make this clear to their patients as patients may fear prosecution for having a miscarriage. Physicians should inform their patients that miscarriages are excluded from the definition of abortion and that patients who experience a miscarriage have the option to seek medical care, as they may experience conditions such as partial miscarriage or retained placenta that require medical care.
Penalties for Violating HB 481
HB 481 relies on existing criminal laws at O.C.G.A. § 16-12-140, which make it a criminal offense to perform an abortion in violation of Georgia’s abortion laws. A person convicted of such an offense may face up to ten years in prison. HB 481 provides certain “affirmative defenses” to criminal liability that primarily relate to instances where a medical provider is attempting to provide care to a pregnant person resulting in accidental harm to the fetus. For example, a physician who prescribed methotrexate for an autoimmune disorder, accidentally resulting in a miscarriage would have an affirmative defense to prosecution (although an affirmative defense is not the same as complete immunity from prosecution).
Failure to perform an ultrasound to determine gestational age can result in criminal or civil liability and constitutes “unprofessional conduct,” which may result in revocation of the physician’s license.
Other implications of the law are less clear and revolve around the changed definition of “natural person.” There is speculation, bolstered by the statements of some district attorneys, that murder, assault, or similar crimes involving harm to a person could be brought against a physician who performs an abortion, a person who seeks an abortion, or a person who helps someone obtain an abortion. Other people, including Georgia lawmakers, insist that the purpose of the bill is not to subject a pregnant person to liability for murder, but this remains to be seen and is subject to prosecutorial discretion. Regardless of the intent or the outcome, physicians should be armed with this knowledge to guide their patients’ decision-making.
It is hard to ignore that providers’ decisions and conversations with their patients may be influenced by the county in which they practice, although we cannot advise providers on actions outside of the four corners of the statute. District attorneys in some parts of Georgia have stated that they will not prosecute reported violations of HB 481 or will direct prosecution to be low on the list of priorities. Such prosecutors are also more likely to interpret the exceptions more broadly, if they prosecute at all. Other prosecutors in Georgia have announced their intent to prosecute strictly with strict interpretations. The Attorney General’s office has not announced how it could become involved.
As a state law, these cases may be heard in state court, as opposed to federal court, though attorneys will attempt to remove cases to federal court. County superior courts will be more unpredictable until there is settled law at the Georgia Court of Appeals or Supreme Court. MMM will be closely monitoring enforcement actions and legal commentary to update this guidance as needed.
Hospitals and providers should also be aware that HB 481 does not provide immunity from medical malpractice liability.
Immediate Next Steps
Hospitals and physicians should proactively address and plan for these issues, as they are not theoretical and are already occurring in states with trigger laws. The policies and procedures that hospitals and physicians develop must incorporate the adage of “do no harm.” Procedures to evaluate whether an abortion is medically necessary to save the life of the pregnant person must not take so long to implement that the evaluation of medical necessity itself endangers the life of the patient. We further urge hospitals to work with their physicians, particularly their obstetricians and maternal fetal medicine physicians, to develop these policies and procedures, rather than taking a top-down approach developed by non-medical personnel. Hospitals must also consider their concurrent obligations under federal laws, such as EMTALA and HIPAA, as state law cannot vitiate federal law requirements even if the federal law does not entirely pre-empt state law. Articles discussing the intersection of HB 481 and EMTALA and HIPAA are forthcoming.
For immediate questions and policy development, please contact a member of the MMM healthcare team.