Dr. Anthony Michael Kreis
Dr. Anthony Michael Kreis is an assistant professor of law at Georgia State University College of Law where he specializes in constitutional law, legal history and civil rights.
When the Supreme Court overturned Roe v. Wade last month, the justices returned the question of how to regulate abortion to the states.
As a matter of federal constitutional law, federal courts will give legislatures deference and uphold almost any abortion law. However, another major constitutional question has stirred debate in the Georgia Attorney General race and in legal circles: Is abortion a constitutional right under the Georgia Constitution?
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The Georgia Supreme Court’s precedent on privacy
The right to make personal medical decisions lies between a patient and their doctor within a right to privacy. Georgia has the longest constitutional tradition of protecting a right to privacy in the United States.
In a 1905 decision, Pavesich v. New England Life Insurance Company, the Georgia Supreme Court recognized a sweeping right of Georgians to keep their lives shielded from public scrutiny and unjustified state intervention. Under the state constitution, Georgians have a robust right to “to be let alone” and the “right to withdraw from the public gaze.”
The Georgia courts should apply original state constitutional principles and protect abortion access up to 15 weeks of pregnancy. The LIFE Act prohibits abortions once fetal heart tones are detected at about six weeks into a pregnancy. At this point, the LIFE Act will also deem an embryo a person for all state law purposes. There are some narrow exceptions to the rule for medical emergency, rape and incest.
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The Georgia courts should apply original state constitutional principles and protect abortion access up to 15 weeks of pregnancy.
The right to privacy originated in the state constitution’s Rights of Persons. First adopted in 1861 and expanded in the 1865 Constitution that abolished slavery, this language ensures a right to life, liberty and property protected by the due process of law.
If applying original principles to the constitution’s privacy right, Georgia courts must first inquire into the law of Georgia at the time of ratification of the state constitution in the 1860s.
The history of abortion regulation in Georgia
Historically, Georgia did not regulate abortion during early pregnancy and followed the common law. The common law rejected embryonic personhood, only acknowledging a fetus as having a special legal status separate from the mother’s once the pregnant woman could feel fetal movement, called “quickening,” at about 16 weeks.
Under the common law at the time of the state constitution’s initial ratification of the liberty and privacy right, it was a misdemeanor to intentionally end the pregnancy of any woman pregnant with a quick child. By the time the state constitution’s liberty right was affirmed for the third time in 1868, abortions still remained legal before quickening – abortion at 15 weeks was lawful.
In 1876, the state banned abortions for the first time by statute at all stages of pregnancy, with an exception for a woman’s health. Though inconsistent with the original understanding of privacy, the law nonetheless recognized the importance of quickening as the pivotal moment of legal recognition. While the intentional inducement of a miscarriage was deemed “intent to murder” for a quick child, the law made criminal abortion a misdemeanor for any non-quick pregnancy.
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Georgia led the country in 1968 and repealed this law before Roe v. Wade. Georgia permitted abortions where a patient’s health was endangered, the fetus had “a grave, permanent, and irremediable mental or physical defect,” or if the patient was a rape victim.
In 1982, the General Assembly passed a feticide statute that imposed severe criminal penalties on anyone who “without legal justification causes the death of an unborn child by any injury to the mother of such child.” Here, as in the 1860s, quickening was the standard for determining whether the feticide statute applied. Crucially, this was the state of the law when voters approved the current state constitution, which came into effect in 1983.
The Georgia Constitution robustly protects women’s personal health care decisions. Georgia law has long recognized the right to privacy, the right of pregnant patients and the right of fetal life to shift at only one crucial point: quickening.
The LIFE Act is inconsistent with the original Civil War era understanding of privacy and the understanding of voters who ratified the current state constitution 40 years ago. Simply put, the LIFE Act is unconstitutional.