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Georgia The pre-Roe statute was based upon § 230.3 of the Model Penal Code.1 Under the statute, an abortion could not be performed unless (1) “continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health,” (2) the “fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect,” or (3) the pregnancy resulted from forcible or statutory rape.2 The statute did not place any express limits on the stage of pregnancy at which an authorized abortion could be performed. Major provisions of the statute were declared unconstitutional by a three-judge federal district court in Doe v. Bolton,3 which decision was affirmed, as modified, by the Supreme Court.4 The statute was repealed in 1973,5 and would not be revived by the overruling of Roe v. Wade and Doe v. Bolton. Abortions could be performed for any reason before the third trimester, and for virtually any reason thereafter.6
1 Geo. Code Ann. § 26-1201 et seq. (1972). 2 Id. §§ 26-1202(a)(1), -(2), -(3). Unlike most statutes based upon § 230.3 of the Model Penal Code (other than Maryland), the Georgia statute did not expressly authorize an abortion where the pregnancy resulted from incest. The law imposed other conditions. The abortion had to be performed in a licensed and accredited hospital and had to be approved in advance by a majority vote of a medical staff committee of the hospital. Id. §§ 26-1202(b)(4), -(5). In addition to the attending physician, two other physicians had to certify in writing that, based upon their separate personal examinations of the pregnant woman, the abortion was, in their judgment, necessary because of one of the reasons specified in § 26-1202(a). Id. § 1202(b)(3). If the abortion was sought because the pregnancy resulted from rape, the rape had to be reported in writing under oath to a local law enforcement officer or agency and both a certified copy of the police report and a written statement by the solicitor general for the judicial circuit where the rape occurred (or allegedly occurred) that there was probable cause to believe that the rape had occurred had to be completed. Id. § 26-1202(b)(6). The woman upon whom the abortion was to be performed had to certify in writing under oath that she was a bona fide legal resident of the State, id. § 26-1202(b)(1), and the attending physician had to certify in writing that he believed that the woman was a bona fide resident of the State, id. § 26-1202(b)(2). The law also allowed the solicitor general of the judicial circuit in which an abortion was to be performed and any person who would be a relative of the child within the second degree of consanguinity to petition the superior court of the county in which the abortion was to be performed for a declaratory judgment to determine whether the performance of the abortion would violate any constitutional or other legal rights of the fetus. Id. § 26-1202(c). 3 319 F.Supp. 1048 (N.D. Ga. 1970). 4 410 U.S. 179 (1973). 5 1973 Ga. Laws No. 328, § 1; Vol. I Ga. Acts & Resolutions 635, 636-37 (1973). 6 Because of its undefined health exception, Georgia’s third-trimester statute, see Ga. Code Ann. § 16-12-141(c) (2003), would not effectively prohibit abortions at that stage of pregnancy. In interpreting the undefined health exception in the pre-Roe District of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ . . . includes psychological as well as physical well-being.” United States v. Vuitch, 402 U.S. 62, 72 (1971). See also Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining whether an abortion is medically necessary, “all factors– physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient” may be considered). There would be few, if any, abortions that could not be justified on psychological or emotional grounds. |
May be reprinted without permission but with attribution to the Life Legal Defense Fund.