Cobb leaders on abortion in a post-Roe Georgia

As the Supreme Court struck down the right to an abortion Friday in its move to overturn Roe v. Wade, the author of House Bill 481 — Georgia’s so-called “heartbeat bill” — said he expects it to soon be the law of the land.

“I think by any estimate, this summer it will be in effect,” state Rep. Ed Setzler, R-Acworth, told the MDJ.

The controversial bill, which passed in 2019, lowers the period during which an abortion may be performed from 20 weeks to when a fetus has a “detectable human heartbeat,” which can occur as early as six weeks into a pregnancy (critics have argued that the cardiac activity in embryos at this stage of pregnancy is not a true heartbeat).

The law has been held up in litigation since passage, with the 11th U.S. Circuit Court of Appeals saying it would look to the Supreme Court’s decision before ruling on the case. Attorney General Chris Carr said Friday his office has asked the 11th Circuit to move forward with allowing the bill to go into effect.

But should HB 481 become active, it’s unclear how it will be put into practice, law enforcement officials and prosecutors told the MDJ Friday.

Speaking with the MDJ Friday, Carr pledged, “We’re going to enforce the laws of the state of Georgia through our office.”

In many cases, the decision of enforcement will be left to local prosecutors. Some metro Atlanta district attorneys have already pledged to defy the law. DeKalb County District Attorney Sherry Boston, for example, immediately announced she would not prosecute individuals under HB 481, with Fulton County District Attorney soon following suit, according to the Atlanta Journal-Constitution.

Cobb District Attorney Flynn Broady did not make the same commitment.

“We’ll take everything case-by-case, and follow the law as it’s written,” Broady told the MDJ.

Said Carr of those DAs who may choose not to enforce HB 481, “If other people choose not to uphold the law, then it’s up to the voters of their district to make that determination if that’s appropriate.”

Enforcement

Marietta Police Department spokesperson Chuck McPhilamy said local police will likely not be charged with enforcement, but the department would await direction from state authorities.

Georgia Bureau of Investigation Director Vic Reynolds likewise said the GBI’s role remains to be seen. Given the bureau’s traditional role as an assisting agency — coming in at the request of other jurisdictions — he sees it as unlikely that the GBI will take the lead on enforcement.

“I haven’t sat down and fleshed out what our involvement would be … I would presume that we would handle it like we do any other circumstance. If local authorities call us and ask us to assist, then we’d look at it on a case-by-case basis, but at this point I don’t see what or how the GBI would be involved in those matters,” Reynolds told the MDJ, adding that any legal rulings on the bill “will probably end up dictating what, if any, involvement state agencies have in the enforcement of the law.”

State Rep. Sharon Cooper, R-east Cobb, chair of the Health and Human Services Committee, was one of the General Assembly’s few Republicans to oppose HB 481 in 2019. Cooper said Friday there could still be concerns over the impact to doctors who aren’t performing abortions.

“Our OB-GYNs that are not abortion doctors, that are just going about their daily business — if what they have to do to take care of women who don’t always have pregnancies that go along fine, and sometimes there’s complications and they might lose the baby — it might put them at danger,” Cooper said. “But, you know, it’s Georgia’s law, and as all laws, once they’re implemented, often we have to go back and tweak them if perceived problems really do occur.”

Added state Sen. Kay Kirkpatrick, R-east Cobb, “I always have concerns about doctors that are doing their jobs, and that was my biggest issue. But it does have the exceptions, which is important to me. Other than that, I’m glad that the Supreme Court is giving it back to the states where it belongs.”

Kirkpatrick, a physician, missed the vote on the heartbeat bill because she was attending a funeral, but told the MDJ at the time she would’ve voted against it.

Setzler said the purpose of the bill was simply to revise existing state law, which provides penalties of one to 10 years in prison to a person who performs an illegal abortion. It’s the providers of those illegal abortions who were the focus of the bill, he added.

“It is physicians who are held accountable. It’s physicians who perform illegal abortions, not other people,” he said, arguing that HB 481 codified protections for mothers who reasonably believe an abortion will prevent a medical emergency.

Asked whether mothers could be held liable for obtaining an abortion or performing one on themselves with medication, Setzler said that wasn’t the aim of the legislation.

“I think they certainly have a duty to follow the law, but … if an abortion is performed on someone by a physician or by a non-physician actor, if it’s outside the law, that actor is held accountable,” he added. “…We feel comfortable there’s not going to be convictions brought for women under duress because of a pregnancy.”

‘Right now, abortion is your right’

Meanwhile, Planned Parenthood said it will continue to be “business as usual” until HB 481 goes into effect. Lauren Frazier, communications director for Planned Parenthood Southeast, said the group doesn’t expect any enforcement to begin for several months.

“We don’t know what the courts will decide, but right now, abortion is your right and you still have access to the care that you need and deserve,” Frazier said.

But the group is preparing for the eventuality that abortion in Georgia could soon be illegal after six weeks, she added. To that end, the group has hired a staff member to connect patients with out-of-state abortion providers and help them cover travel expenses and childcare.

Frazier criticized HB 481 for moving the cutoff date for an abortion to a point before many women may know if they’re pregnant, and said the lack of clarity about enforcement is itself an issue with the bill.

“If it’s confusing for the experts, it’s certainly confusing for the patients who will be impacted by these laws. So that’s something that our lawyers are continuing to keep a close watch on, but we really don’t know,” she added.