Critics say Georgia’s abortion law could land women in prison. Here's what we know

Georgia’s new abortion law has critics warning it could result in imprisoning women who get abortions.

"The Georgia bill states that a woman can be investigated for miscarrying and that women who travel to another state to get an abortion can spend up to ten years in prison," actress Alyssa Milano tweeted May 13.

The claim that women in Georgia can be arrested for an abortion has flown around the Internet. Anti-abortion advocates say it’s fear-mongering, and that women wouldn’t be jailed.

The truth? It’s murky.

The Georgia law doesn’t specifically say women aren’t subject to prosecution; it’s silent on the issue. So the law’s critics are assuming that woman can and will be prosecuted. That’s not certain.

On the other hand, the law’s supporters can’t say for sure that women won’t be prosecuted.

Slate’s argument

Milano and others got their information from an article in Slate headlined, "Georgia Just Criminalized Abortion. Women Who Terminate Their Pregnancies Would Receive Life in Prison."

Georgia Gov. Brian Kemp signed HB 481  — the Living Infants Fairness and Equality (LIFE) Act — into law May 7. The law prohibits abortion once a doctor can detect a fetal heartbeat, around the six-week mark. It includes exceptions for rape and incest up to 20 weeks, but only if an official police report has been filed.

The law does not spell out what happens to a woman who has an abortion after that cutoff, nor does it directly say miscarriages can be investigated.

The law defines a miscarriage as a "spontaneous abortion." Removing "a dead unborn child caused by spontaneous abortion" is legal, under the new law.

Under the existing law, a person convicted of administering criminal abortion can face up to 10 years in prison. But the Court of Appeals of Georgia has said that applies only to third parties, not to the women seeking abortions.

In 1998, the court concluded that an 18-year-old woman who shot herself in the stomach while pregnant to cause an abortion could not be prosecuted. In Hillman vs. State, the court wrote that the statute was "written in the third person, clearly indicating that at least two actors must be involved."

The statute "does not criminalize a pregnant woman's actions in securing an abortion, regardless of the means utilized," the court wrote.

But nothing in the new law directly states that women can’t be prosecuted for self-administering an abortion, argued Slate reporter Mark Joseph Stern.

If Georgia legislators wanted to shield women from prosecution under abortion bans, they could have spelled that out as Alabama did in its new law, he said.

Alabama’s bill states: "This bill would provide that a woman who receives an abortion will not be held criminally culpable or civilly liable for receiving the abortion."

Georgia’s bill has no such language.

What lawmakers and prosecutors say

State Sen. Jen Jordan, an Atlanta Democrat and lawyer, said in a Twitter thread that the language takes the state into new territory. The bill defines a "natural person" as any human being including an "unborn child with a detectable human heartbeat."

"How does it matter? Well, criminal laws we have to outlaw murder, manslaughter, etc. are in place to protect ‘natural persons.’ So yes, if woman were to have miscarriage or seek an abortion, she could be prosecuted under any of these. It would be up to discretion of prosecutor," she tweeted.

District attorneys in Georgia’s most populous counties told The Atlanta Journal-Constitution as well as PolitiFact that they won’t prosecute women who get abortions. The Macon County District Attorney told the Daily Report he won’t prosecute women either.

DeKalb County District Attorney Sherry Boston said that while analysis of case law and other statutes seems to make clear a woman can’t be prosecuted for obtaining an abortion, "this new law muddies the water and may open the door for this type of prosecution." She said she won’t prosecute women under the law.

However, Douglas County District Attorney Ryan Leonard told the Daily Report he thinks women can be charged with murder under the new law (though he said he wasn’t eager to prosecute people).

"Women need to be made aware. You may not agree with the law. But whether you agree with it or not, it could potentially result in serious consequences if you violate the law," Leonard said. "The only way to be 100% sure you’re not prosecuted under it is not to have an abortion. That’s the way the law stands today."

An NPR station in Georgia surveyed Georgia's 49 elected district attorneys about whether they would prosecute women who got abortions. Many wouldn’t speculate on a hypothetical question without a specific case before them.

Our conclusion

Milano and others are claiming that a new abortion law in Georgia states that women will be subject to prosecution. It actually doesn’t say that, but that doesn’t mean the opposite — that women can’t be prosecuted for an abortion — is true, either. We’ll have to wait and see how prosecutors and courts interpret the laws before we know which claim is accurate.