2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 12 - Offenses Against Public Health and Morals
Article 5 - Abortion
§ 16-12-141. Restrictions on the Performance of Abortions; Availability of Records; Civil Cause of Action; Affirmative Defenses

1. As used in this article, the term:
   1. "Abortion" means the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child; provided, however, that any such act shall not be considered an abortion if the act is performed with the purpose of:
      1. Removing a dead unborn child caused by spontaneous abortion; or
      2. Removing an ectopic pregnancy.
   2. "Detectable human heartbeat" means embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the heart within the gestational sac.
   3. "Medical emergency" means a condition in which an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman.No such greater risk shall be deemed to exist if it is based on a diagnosis or claim of a mental or emotional condition of the pregnant woman or that the pregnant woman will purposefully engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.
   4. "Medically futile" means that, in reasonable medical judgment, an unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.
   5. "Spontaneous abortion" means the naturally occurring death of an unborn child, including a miscarriage or stillbirth.
2. No abortion is authorized or shall be performed if an unborn child has been determined in accordance with Code Section 31-9B-2 to have a detectable human heartbeat except when:
   1. A physician determines, in reasonable medical judgment, that a medical emergency exists;
   2. The probable gestational age of the unborn child is 20 weeks or less and the pregnancy is the result of rape or incest in which an official police report has been filed alleging the offense of rape or incest.As used in this paragraph, the term "probable gestational age of the unborn child" has the meaning provided by Code Section 31-9B-1; or
   3. A physician determines, in reasonable medical judgment, that the pregnancy is medically futile.
3. In conducting an abortion, if the child is capable of sustained life, medical aid then available shall be rendered.
4. No abortion is authorized or shall be performed in violation of subsection (a) of Code Section 31-9B-2.
5. 1. No abortion is authorized or shall be performed after the first trimester unless the abortion is performed in a licensed hospital, in a licensed ambulatory surgical center, or in a health facility licensed as an abortion facility by the Department of Community Health.
   2. An abortion shall only be performed by a physician licensed under Article 2 of Chapter 34 of Title 43.
6. Health records shall be available to the district attorney of the judicial circuit in which the act of abortion occurs or the woman upon whom an abortion is performed resides.
7. Any woman upon whom an abortion is performed in violation of this Code section may recover in a civil action from the person who engaged in such violation all damages available to her under Georgia law for any torts.
8. It shall be an affirmative defense to prosecution under this article if:
   1. A licensed physician provides medical treatment to a pregnant woman which results in the accidental or unintentional injury to or death of an unborn child;
   2. An advanced practice registered nurse or registered professional nurse, as such terms are defined in Code Section 43-26-3, or a licensed practical nurse, as such term is defined in Code Section 43-26-32, engages in the practice of nursing to provide care for a pregnant woman which results in the accidental or unintentional injury to or death of an unborn child;
   3. A licensed pharmacist engages in the practice of pharmacy, as such term is defined in Code Section 26-4-4, to provide care for a pregnant woman which results in the accidental or unintentional injury or death of an unborn child;
   4. A licensed physician assistant, as such term is defined in Code Section 43-34-102, provides care to a pregnant woman which results in the accidental or unintentional injury to or death of an unborn child; or
   5. A woman sought an abortion because she reasonably believed that an abortion was the only way to prevent a medical emergency.

(Code 1933, § 26-1202, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1973, p. 635, § 1; Ga. L. 1997, p. 142, § 1; Ga. L. 2005, p. 1450, § 4/HB 197; Ga. L. 2009, p. 453, §§ 1-4, 1-6/HB 228; Ga. L. 2011, p. 705, §§ 6-3, 6-5/HB 214; Ga. L. 2012, p. 575, § 2/HB 954; Ga. L. 2019, p. 711, § 4/HB 481.)

The 2019 amendment, effective January 1, 2020, rewrote this Code section, which read: "(a) No abortion is authorized or shall be performed in violation of subsection (a) of Code Section 31-9B-2.

"(b)(1) No abortion is authorized or shall be performed after the first trimester unless the abortion is performed in a licensed hospital, in a licensed ambulatory surgical center, or in a health facility licensed as an abortion facility by the Department of Community Health.

"(2) An abortion shall only be performed by a physician licensed under Article 2 of Chapter 34 of Title 43.

"(c)(1) No abortion is authorized or shall be performed if the probable gestational age of the unborn child has been determined in accordance with Code Section 31-9B-2 to be 20 weeks or more unless the pregnancy is diagnosed as medically futile, as such term is defined in Code Section 31-9B-1, or in reasonable medical judgment the abortion is necessary to:

"(A) Avert the death of the pregnant woman or avert serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman. No such condition shall be deemed to exist if it is based on a diagnosis or claim of a mental or emotional condition of the pregnant woman or that the pregnant woman will purposefully engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function; or

"(B) Preserve the life of an unborn child.

"As used in this paragraph, the term 'probable gestational age of the unborn child' has the meaning provided by Code Section 31-9B-1.

"(2) In any case described in subparagraph (A) or (B) of paragraph (1) of this subsection, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the pregnant woman than would another available method. No such greater risk shall be deemed to exist if it is based on a diagnosis or claim of a mental or emotional condition of the pregnant woman or that the pregnant woman will purposefully engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function. If the child is capable of sustained life, medical aid then available must be rendered.

"(d) Hospital or other licensed health facility records shall be available to the district attorney of the judicial circuit in which the hospital or health facility is located."

- Ga. L. 2012, p. 575, § 1/HB 954, not codified by the General Assembly, provides that: "The General Assembly makes the following findings:

"(1) At least by 20 weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain;

"(2) There is substantial evidence that, by 20 weeks after fertilization, unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted as a response to pain;

"(3) Anesthesia is routinely administered to unborn children who have developed 20 weeks or more past fertilization who undergo prenatal surgery;

"(4) Even before 20 weeks after fertilization, unborn children have been observed to exhibit hormonal stress responses to painful stimuli. Such responses were reduced when pain medication was administered directly to such unborn children;

"(4.1) Probable gestational age is an estimate made to assume the closest time to which the fertilization of a human ovum occurred and does not purport to be an exact diagnosis of when such fertilization occurred; and

"(5) It is the purpose of the State of Georgia to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain."

Ga. L. 2019, p. 711, § 1/HB 481, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Living Infants Fairness and Equality (LIFE) Act.'"

Ga. L. 2019, p. 711, § 2/HB 481, not codified by the General Assembly, provides: "The General Assembly of Georgia makes the following findings:

"(1) In the founding of the United States of America, the State of Georgia and the several states affirmed that: 'We hold these Truths to be self evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness - that to secure these Rights, Governments are instituted among men;'

"(2) To protect the fundamental rights of all persons, and specifically to protect the fundamental rights of particular classes of persons who had not previously been recognized under law, the 14th Amendment to the United States Constitution was ratified, providing that, 'nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws';

"(3) Modern medical science, not available decades ago, demonstrates that unborn children are a class of living, distinct persons and more expansive state recognition of unborn children as persons did not exist when Planned Parenthood v. Casey (1992) and Roe v. Wade (1973) established abortion related precedents;

"(4) The State of Georgia, applying reasoned judgment to the full body of modern medical science, recognizes the benefits of providing full legal recognition to an unborn child above the minimum requirements of federal law;

"(5) Article I, Section I, Paragraphs I and II of the Constitution of the State of Georgia affirm that '[n]o person shall be deprived of life, liberty, or property except by due process of law'; and that '[p]rotection 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'; and

"(6) It shall be the policy of the State of Georgia to recognize unborn children as natural persons."

Ga. L. 2019, p. 711, § 13/HB 481, not codified by the General Assembly, provides: "Any citizen of this state shall have standing and the right to intervene and defend in any action challenging the constitutionality of any portion of this Act."

Ga. L. 2019, p. 711, § 14/HB 481, not codified by the General Assembly, provides: "All provisions of this Act shall be severable in accordance with Code Section 1-1-3."

- Performance of abortions after the first trimester of pregnancy, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Department of Human Resources, Chapter 290-5-32.

- For article, "Crimes and Offenses," see 27 Ga. St. U.L. Rev. 209 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 250 (1997). For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 147 (2005). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 253 (2012). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 155 (2019). For annual survey on healthcare law, see 70 Mercer L. Rev. 1053 (2019).

Whether an abortion was necessary was a professional judgment that a Georgia physician will be called upon to make routinely, and such words did not make former Code 1933, § 26-1202 (see now O.C.G.A. § 16-12-141) unconstitutionally vague. Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973).

- Viable unborn child has the right under the United States Constitution to protection of state through statutes prohibiting arbitrary termination of life of an unborn fetus. Jefferson v. Griffin Spalding County Hosp. Auth., 247 Ga. 86, 274 S.E.2d 457 (1981).

As to required acquiescence by co-practitioners under former Code 1933, § 26-1202(b)(3) (see now O.C.G.A. § 16-12-141(c)), the statute's connection, or lack thereof, with patient's needs and the statute's effect on physician's right to practice, see Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973) (decided prior to repeal and reenactment of this section by Ga. L. 1973, p. 635, § 1).

Cited in Lathrop v. Deal, 301 Ga. 408, 801 S.E.2d 867 (2017).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 26-1202 and 88-1716 are included in the annotations for this Code section.

- Beyond requirements provided by abortion statute enacted in compliance with holding of landmark, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), the Board of Offender Rehabilitation may not regulate right of female inmates to have abortions; the board must comply with these statutory requirements in allowing and procuring abortions for female inmates, but a failure to permit such abortions under prescribed conditions would lead to infringement of the female inmates' civil rights as guaranteed under the United States Constitution. 1977 Op. Att'y Gen. No. 77-36.

Certificate of legal abortion will not replace fetal death certificate (see now O.C.G.A. §§ 31-10-18 and31-10-19). 1973 Op. Att'y Gen. No. 73-71 (rendered under former Code 1933, §§ 26-1202 and 88-1716).

Physician is immune from civil liability for performing an abortion when requirements are met, assuming that no restraining order has been issued. 1970 Op. Att'y Gen. No. U70-61 (rendered under former Code 1933, § 26-1202, prior to repeal and reenactment by Ga. L. 1973, p. 635, § 1).

RESEARCH REFERENCES

Am. Jur. 2d.

- 1 Am. Jur. 2d, Abortion and Birth Control, § 3.

- 1 C.J.S., Abortion and Birth Control; Family Planning, § 1.

- Criminal responsibility of one other than subject or actual perpetrator of abortion, 4 A.L.R. 351.

Right of action for injury to or death of woman who consented to illegal abortion, 36 A.L.R.3d 630.

Homicide based on killing of unborn child, 40 A.L.R.3d 444.

Woman's right to have abortion without consent of, or against objections of, child's father, 62 A.L.R.3d 1097.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Medical practice in performance of legal abortion, 69 A.L.R.4th 875.