History. 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.”
Editor’s notes.
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.”
Administrative rules and regulations.
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.
Law reviews.
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).