Doctors Challenge Georgia’s ‘Fetal Pain’ Law

ATLANTA (CN) - Georgia's new "fetal pain" law threatens doctors with 10-year prison terms, criminalizes nearly all abortions after 20 weeks, and grants state prosecutors "unfettered access" to women's private medical records, three doctors claim in court.

Three gynecologists who perform a limited number of pre-viability abortions sued Gov. Nathan Deal and other state officials, challenging Georgia House Bill 954, which Deal signed into law on May 1 and is to take effect on Jan. 1, 2013.

Seven other states - Alabama, Arizona, Idaho, Indiana, Kansas, Nebraska and Oklahoma - have similar "fetal pain" bills.

Georgia's bill states that a fetus is viable, with a functioning nervous system, at 20 weeks after fertilization, and can feel pain, therefore it is the state's duty to protect the fetus.

The three plaintiff physicians, and other medical experts, disagree on the date after fertilization that a fetus is viable.

"With very narrow exceptions, the Act bans all abortions starting at 20 weeks, which is a pre-viability point in pregnancy a point at which the fetus does not have a reasonable likelihood of sustained survival outside the woman," the doctors, all women, say in complaint.

"Where a healthy woman is carrying a healthy, singleton fetus, viability generally occurs at 22 weeks post-fertilization. In many instances in which the woman is sick, the fetus is compromised in some way, and/or it is a multi-fetal pregnancy, the fetus does not become viable until later in the pregnancy, if at all."

The also allows sanctions upon medical licenses, and imprisonment of up to 10 years, to doctors who perform post-20-week abortions.

The bill contains no exceptions for victims of rape or incest, but offers a narrow window for abortions due to the health of the mother or for some fetal abnormalities.

It would be up to a state agency to determine whether an abortion was necessary, by compelling physicians to file an abortion report with the Georgia Department of Health.

"No abortion is authorized or shall be performed after the second trimester 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 physician and two consulting physicians certify that the pregnancy is diagnosed as medically futile," the bill states.

Any abortion performed after weeks 20 must be performed in a manner that removes the fetus alive, under HB 954.

But the plaintiffs say the term "medically futile" is vague.

"In many instances, although the threat to the woman's health is serious, and may become more so over time, her condition does not meet the statutory definition of 'medical emergency,'" the complaint states.

"Of these women, some decide to terminate the pregnancy before viability in order to reduce current or future risks to their health. Starting at 20 weeks, the Act would force such a woman to continue the pregnancy against her will until she gives birth, miscarries, or experiences a deterioration of her condition to the point that she does fall under the Act's narrow definition of 'medical emergency.'"

Another troubling and unconstitutional part of the bill, according to the complaint, is the invasion of privacy and the violations of patients' rights to equal protection as it relates to a woman's medical records.

Once the law is enforced, and a physician files a report with the Department of Health, the department, and any Georgia district attorneys, are allowed to view the abortion patient's medical records to determine whether charges should be filed.

"By allowing district attorneys to access patient medical records without due process protections, the Act violates plaintiffs' patients' rights to privacy guaranteed by various provisions of the Georgia Constitution, including due process, freedom of conscience and inherent rights," according to the complaint.

"Furthermore, with only a narrow exception for medical emergencies, the Act unconstitutionally endangers women's health. Finally, the Act uses vague terms and appears to grant district attorneys unfettered access to the private medical files of abortion patients in violation of state constitutional rights to due process, privacy and equal protection."

The doctors seek declaratory judgment that the bill is unconstitutional, that the Georgia Constitution protects the right to reproductive privacy, and an injunction against its enforcement.

They are represented by the ACLU Foundation of Georgia.

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