Case 1:19-mi-99999-UNA Document 2130 Filed 06/28/19 Page 1 of 60

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SISTERSONG WOMEN OF COLOR )
)
REPRODUCTIVE JUSTICE
)
COLLECTIVE, on behalf of itself and )
its members; FEMINIST WOMEN’S ))
) Civil Action No.: ____________
HEALTH CENTER; PLANNED
PARENTHOOD SOUTHEAST, INC., ))
ATLANTA COMPREHENSIVE
)
)
WELLNESS CLINIC, ATLANTA
)
WOMEN’S MEDICAL CENTER,
)
FEMHEALTH USA d/b/a CARAFEM, )
COLUMBUS WOMEN’S HEALTH ))
ORGANIZATION, P.C., SUMMIT
)
)
MEDICAL ASSOCIATES, P.C., on
)
behalf of themselves, their physicians )
)
and other staff, and their patients;
)
CARRIE CWIAK, M.D., M.P.H., LISA )
HADDAD, M.D., M.S., M.P.H., and )
)
EVA LATHROP, M.D., M.P.H., on
)
behalf of themselves and their patients, )
)
)
Plaintiffs,
)
)
)
vs.
)
)
BRIAN KEMP, Governor of the State ))
of Georgia, in his official capacity;
)
CHRISTOPHER M. CARR, Georgia )
)
Attorney General, in his official
)
)
capacity; KATHLEEN TOOMEY,
Georgia Commissioner for Department ))
of Public Health, in her official
)
capacity; JOHN S. ANTALIS, M.D., )
)
GRETCHEN COLLINS, M.D., DEBI )
)
1

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)
DALTON, M.D., E. DANIEL
)
DeLOACH, M.D., CHARMAINE
)
)
FAUCHER, PA-C, MICHAEL
FOWLER, Sr., C.F.S.P., ALEXANDER ))
S. GROSS, M.D., THOMAS HARDIN )
)
Jr., M.D., ROB LAW, C.F.A.,
)
MATTHEW W. NORMAN, M.D.,
)
)
DAVID W. RETTERBUSH, M.D.,
)
ANDREW REISMAN, M.D., JOE
)
SAM ROBINSON, M.D., BARBY J. )
SIMMONS, D.O., and RICHARD L. ))
WEIL, M.D., Members of the Georgia )
)
Composite Medical Board, in their
)
official capacities; LaSHARN
)
HUGHES, M.B.A., Executive Director )
)
of Georgia Composite Medical Board, )
)
in her official capacity; PAUL L.
HOWARD, JR., District Attorney for ))
Fulton County, in his official capacity; )
SHERRY BOSTON, District Attorney )
)
for DeKalb County, in her official
)
)
capacity; JULIA SLATER District
Attorney for the Chattahoochee Judicial ))
Circuit, in her official capacity; JOHN )
MELVIN, Acting District Attorney for ))
the Cobb Judicial Circuit, in his official )
capacity; DANNY PORTER, District )
)
Attorney for the Gwinnett Judicial
)
)
Circuit, in his official capacity; and
MEG HEAP, District Attorney for the ))
Eastern Judicial Circuit, in her official )
)
capacity,
)
)
)
Defendants.
)
)
)
)
)
2

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VERIFIED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs, by and through their attorneys, bring this Complaint against the
above-named Defendants, their employees, agents, and successors in office, and in
support thereof state the following:
INTRODUCTION
1.

This is a constitutional challenge to House Bill 481 (“H.B. 481”),

attached as Exhibit A, which bans practically all abortions. This law is an affront to
the dignity and health of Georgians. It is in particular an attack on low-income
Georgians, Georgians of color, and rural Georgians, who are least able to access
medical care and least able to overcome the cruelties of this law. Georgians face a
critical shortage of reproductive health care providers, including obstetriciangynecologists, and the rate at which Georgians, particularly Black Georgians, die
from pregnancy-related causes is among the highest in the nation.
2.

Rather than working to end those preventable deaths, and rather than

honoring Georgians’ reproductive health care decisions, the Legislature has instead
chosen to criminalize abortion from the earliest stages of pregnancy. H.B. 481
criminalizes pre-viability abortions in direct conflict with Roe v. Wade, 410 U.S.
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113 (1973), and nearly a half century of Supreme Court precedent reaffirming
Roe’s central holding. Specifically, it criminalizes abortion after embryonic cardiac
activity is detectable, which generally occurs around six weeks in pregnancy, when
many people are unaware they are pregnant. The law undermines a woman’s
“ability . . . to participate equally in the economic and social life of the Nation,”
which “has been facilitated by their ability to control their reproductive lives.”
Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992).
3.

In addition, this law threatens a vast array of medical care critical for

the health of Georgia’s women1 of reproductive age. Its vague language threatens
clinicians with prosecution for any medical care they provide to pregnant patients
that could harm an embryo/fetus.2 The threat of criminal liability is likely to have a
chilling effect on health care providers across Georgia, shaping provider and
patient decisions about a wide range of health conditions and restricting treatment
options for people who are pregnant or perceived to be capable of pregnancy.

1

Plaintiffs use “woman” or “women” as a short-hand for people who are or
may become pregnant, but people of all gender identities, including transgender
men and gender-diverse individuals, may also become pregnant and seek abortion
services, and would thus also suffer irreparable harm under H.B. 481.
2

The embryonic stage of pregnancy lasts until approximately ten weeks,
measured from the first day of a woman’s last menstrual period (“lmp”), when the
fetal stage begins.
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4.

The Georgia Legislature passed H.B. 481 on March 29, 2019, and the

Governor signed the bill into law on May 7, 2019. The effective date is January 1,
2020. H.B. 481 § 15, 155th Gen. Assemb., Reg. Sess. (Ga. 2019).
5.

Unless this Court grants an injunction in advance of the effective date,

Plaintiff clinics and physicians will be forced to turn away pregnant patients
seeking critical medical care. Patients seeking banned care will be forced to travel
out of state if they are able; those who are unable to obtain care out of state will be
forced to remain pregnant and give birth against their will, increasing the risk that
they will experience death or serious injury, or they may be forced to seek care
outside the regulated clinical setting.
6.

Absent an injunction, H.B. 481 will prevent Georgians from

exercising their fundamental constitutional right to decide whether to have an
abortion prior to viability and will threaten other critical medical care for pregnant
women, causing irreparable harm.
JURISDICTION AND VENUE
7.

This Court has jurisdiction over this action under 28 U.S.C. §§ 1331

and 1343. This is a civil and constitutional rights action arising under 42 U.S.C. §
1983 and the United States Constitution.

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8.

Plaintiffs’ claims for declaratory and injunctive relief are authorized

by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil
Procedure, and the general legal and equitable powers of this Court.
9.

Venue is appropriate under 28 U.S.C § 1391(b) because a substantial

part of the events or omissions giving rise to Plaintiffs’ claims occur in this judicial
district and division.
PLAINTIFFS
10.

Plaintiff SisterSong Women of Color Reproductive Justice Collective

(“SisterSong”) is a non-profit organization based in Georgia that was formed in
1997 by 16 organizations led by and representing Indigenous, Black, Latinx, and
Asian American women and trans people who recognized their right and
responsibility to represent themselves in advancing their needs. By asserting the
human right to reproductive justice, SisterSong works to build an effective network
of individuals and organizations addressing institutional policies, systems, and
cultural practices that limit the reproductive lives of marginalized people. A
membership organization, SisterSong organizes with a large base whose members
include Georgians who can become pregnant and need the freedom to make their
own health care decisions, including the decision to end a pregnancy.

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11.

H.B. 481’s draconian prohibitions would force SisterSong to divert its

scarce time and resources away from many other aspects of this work to focus on
helping Georgians access abortion care out of state and otherwise adjust to H.B.
481’s sweeping impact. SisterSong and its members are directly impacted by H.B.
481’s restrictions. SisterSong sues on behalf of itself and its members.
12.

Plaintiff Feminist Women’s Health Center (“Feminist”) is a non-profit

reproductive health care facility registered in the state of Georgia and located in
Dekalb County. Feminist has been providing reproductive health care in the state
since 1976. It currently provides a range of services, including abortion up to 21.6
weeks from the first day of a woman’s last menstrual period (“lmp”),3
contraception, annual gynecological examinations, miscarriage management,
sexually transmitted infection (“STI”) testing and treatment, and transgender health
care, such as hormone replacement therapy. Feminist also engages in community
education, grassroots organizing, public affairs, and advocacy programs to advance
reproductive health, rights, and justice for all Georgians. Feminist sues on behalf of
itself, its physicians and other staff, and its patients.

3

Physicians often date pregnancy with the weeks before the decimal and the
days after: “21.6 weeks lmp” means “21 weeks and six days lmp.”
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13.

Plaintiff Planned Parenthood Southeast, Inc. (“PPSE”) is a not-for-

profit corporation, registered in the state of Georgia. PPSE operates four health
centers in Georgia, located in DeKalb, Gwinnett, Cobb, and Chatham counties, and
an additional three health centers in Alabama and Mississippi. PPSE provides
comprehensive reproductive health care, including family planning services,
testing and treatment for sexually transmitted infections, cancer screening and
treatment, pregnancy testing and all options counseling. At its four Georgia health
centers, PPSE also provides medication abortion up to 10 weeks lmp. PPSE and its
corporate predecessors have provided care in Georgia for over 50 years. Plaintiff
PPSE sues on behalf of itself, its physicians and other staff, and its patients.
14.

Plaintiff Atlanta Comprehensive Wellness Clinic (“ACWC”) is a

private medical practice registered in the state of Georgia and located in Fulton
County. ACWC has been providing reproductive health services, including
abortion care up to 13.6 weeks lmp, since 2017. ACWC sues on behalf of itself, its
physicians and other staff, and its patients.
15.

Plaintiff Atlanta Women’s Medical Center (“AWMC”) is a private

company registered in the state of Georgia and located in Fulton County. AWMC
has been providing reproductive health services, including abortion care up to 21.6

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weeks lmp, since 1977. AWMC sues on behalf of itself, its physicians, its staff,
and its patients.
16.

Plaintiff FemHealth USA d/b/a carafem is a nonprofit organization

registered in the state of Georgia and located in Fulton County. Carafem has been
providing reproductive health services, including abortion care up to 12.6 weeks
lmp, since 2016. Carafem brings this action on behalf of itself, its physicians, staff,
and its patients.
17.

Plaintiff Columbus Women’s Health Organization, P.C. (“CWHO”) is

a private medical office registered in the state of Georgia and located in Muscogee
County. CWHO has been providing reproductive health services, including
abortion care up to 13.6 weeks lmp, since 2010. CWHO brings this action on
behalf of itself, its physicians and other staff, and its patients.
18.

Plaintiff Summit Medical Associates, P.C. (“Summit”) is a

professional corporation registered in the state of Georgia and located in Fulton
County. Summit has been providing reproductive health services, including
abortion care up to 21.6 weeks lmp, since 1976. Summit brings this action on
behalf of itself, its physicians and other staff, and its patients.
19.

Plaintiff Carrie Cwiak, M.D., M.P.H., is a board-certified obstetrician

and gynecologist licensed to practice in Georgia. She is Professor of Gynecology
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and Obstetrics and Family Planning at Emory University School of Medicine. In
addition to teaching residents, her medical practice includes providing her patients
with labor and delivery care and comprehensive obstetrical and gynecological care
including abortions at Emory University Hospital Midtown in Fulton County,
where she is Chief of Service of Obstetrics and Gynecology, and Fulton-DeKalb
Hospital, d/b/a Grady Memorial Hospital, in Fulton County. Dr. Cwiak sues as an
individual on behalf of herself and her patients, and does not sue in her capacity as
an employee or representative of Emory or any other organization.
20.

Plaintiff Lisa Haddad, M.D., M.S., M.P.H., is a board-certified

obstetrician and gynecologist licensed to practice in Georgia. She is Associate
Professor of Gynecology and Obstetrics at Emory University School of Medicine.
In addition to teaching residents, her medical practice includes providing her
patients with labor and delivery care and comprehensive obstetrical and
gynecological care including abortions at Emory University Hospital Midtown in
Fulton County, and Fulton-DeKalb Hospital, d/b/a Grady Memorial Hospital, in
Fulton County. Dr. Haddad sues as an individual on behalf of herself and her
patients, and does not sue in her capacity as an employee or representative of
Emory or any other organization.

10

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21.

Plaintiff Eva Lathrop, M.D., M.P.H. is a board-certified obstetrician

and gynecologist licensed to practice in Georgia. She is Associate Professor – and
as of September 1, 2019, will become Adjunct Professor – of Gynecology and
Obstetrics and Family Planning at Emory University School of Medicine. In
addition to teaching residents, she provides her patients with labor and delivery
care and comprehensive obstetrical and gynecological care including abortions at
Fulton-DeKalb Hospital, d/b/a Grady Memorial Hospital, in Fulton County. Dr.
Lathrop sues as an individual on behalf of herself and her patients, and does not
sue in her capacity as an employee or representative of Emory or any other
organization.
DEFENDANTS
22.

Defendant Brian Kemp is the Governor of the State of Georgia. He

has the power to direct the Attorney General to prosecute crimes, including alleged
criminal violations of H.B. 481. See Ga. Const. art. V, § III, ¶ IV; O.C.G.A. § 4515-35; O.C.G.A. § 45-15-3(3). Defendant Kemp is sued in his official capacity.
23.

Defendant Christopher M. Carr is the Attorney General of the State of

Georgia. He has the power to prosecute crimes, including alleged criminal
violations of H.B. 481, when directed to do so by the Governor. See Ga. Const. art.

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V, § III, ¶ IV; O.C.G.A. § 45-15-3 (detailing Attorney General’s powers and
duties). Defendant Carr is sued in his official capacity.
24.

Defendant Kathleen Toomey is the Commissioner for Georgia’s

Department of Public Health and has the authority to impose civil fines on
physicians who fail to comply with H.B. 481’s requirement that they report and
justify any abortion to demonstrate that it was not unlawful under H.B. 481. See
H.B. 481 § 11 (amending reporting requirements under O.C.G.A. § 31-9B-3);
O.C.G.A. § 31-9B-3(d) (sanctions for reporting violations); O.C.G.A. § 31-9A-6
(civil fines for reporting violations). In addition, the Department of Public Health
must collect these reports, see O.C.G.A. § 31-9B-3, and publish information
reflecting H.B. 481’s new ban, see H.B. 481 § 8 (amending O.C.G.A. § 31-9A-4).
Defendant Toomey is sued in her official capacity.
25.

Defendants John S. Antalis, M.D.; Gretchen Collins, M.D.; Debi

Dalton, M.D.; E. Daniel DeLoach, M.D.; Charmaine Faucher, PA-C; Michael
Fowler, Sr., C.F.S.P.; Alexander S. Gross, M.D.; Thomas Harbin Jr., M.D.; Rob
Law, C.F.A.; Matthew W. Norman, M.D.; David W. Retterbush, M.D.; Andrew
Reisman, M.D.; Joe Sam Robinson, M.D.; Barby J. Simmons, D.O.; and Richard
L. Weil, M.D., are the fifteen Members of the Georgia Composite Medical Board
with voting power. They are responsible for overseeing professional licensure and
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discipline of physicians, physician assistants, and resident physicians. See
O.C.G.A. § 43-34-5. The Board has the authority to discipline such professionals
who have been convicted of a felony, O.C.G.A. § 43-34-8(a)(3), have engaged in
any “unprofessional” conduct, O.C.G.A. § 43-34-8(a)(7), or have violated or
attempted to violate any law which relates to the practice of medicine, O.C.G.A. §
43-34-8(a)(10). Performing an abortion in violation of H.B. 481, by its terms,
“constitutes unprofessional conduct.” H.B. 481 § 10 (amending O.C.G.A. § 31-9B2). Defendant Members of the Georgia Composite Medical Board are sued in their
official capacity.
26.

Defendant LaSharn Hughes, M.B.A., is the Executive Director of the

Georgia Composite Medical Board. She is responsible for conducting
investigations of any unprofessional conduct. See O.C.G.A. §§ 43-34-6(e), 43-348(d). Defendant Hughes is sued in her official capacity.
27.

Defendant District Attorneys, concurrently with the Governor and

Attorney General, are responsible for criminal prosecution, including the
prosecution of the acts made criminal by H.B. 481. See Ga. Const. art. 6, § 8, ¶
I(d); O.C.G.A. § 15-18-6(4).
28.

Defendant Paul L. Howard, Jr. is the District Attorney for the Atlanta

Judicial Circuit, which covers Fulton County. Plaintiffs ACWC, AWMC, carafem,
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Summit, and Drs. Cwiak, Haddad, and Lathrop provide abortion care in Fulton
County. Defendant Howard is sued in his official capacity.
29.

Defendant Sherry Boston is the District Attorney for the Stone

Mountain Judicial Circuit, which covers DeKalb County. Plaintiffs PPSE,
Feminist, and Drs. Cwiak and Haddad provide abortion care in DeKalb County.
Defendant Boston is sued in her official capacity.
30.

Defendant Julia Slater is the District Attorney for the Chattahoochee

Judicial Circuit, which includes Muscogee County. Plaintiff CWHO provides
abortion care in Muscogee County. Defendant Slater is sued in her official
capacity.
31.

Defendant John Melvin is the Acting District Attorney for the Cobb

Judicial Circuit, which covers Cobb County. Plaintiff PPSE has a clinic that
provides abortion care in Cobb County. Defendant Melvin is sued in his official
capacity.
32.

Defendant Danny Porter is the District Attorney for the Gwinnett

Judicial Circuit, which covers Gwinnett County. Plaintiff PPSE has a clinic that
provides abortion care in Gwinnett County. Defendant Porter is sued in his official
capacity.

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33.

Defendant Meg Heap is the District Attorney for the Eastern Judicial

Circuit, which covers Chatham County. Plaintiff PPSE has a clinic that provides
abortion care in Chatham County. Defendant Heap is sued in her official capacity.
STATUTORY FRAMEWORK
34.

Current Georgia law prohibits abortion starting at 22.0 weeks lmp,4

with extremely narrow exceptions. O.C.G.A. § 16-12-141(c)(1). Georgia also
already singles out abortion with numerous regulations: it mandates that an
abortion patient hear a government-created script and then delay her care at least
24 hours before she can consent, O.C.G.A. § 31-9-A-3(2); prohibits non-physicians
from providing abortions, but allows them to provide comparable health care,
O.C.G.A. §§ 16-12-141(a), 43-34-110, 43-34-25(l); limits where second-trimester
abortions can take place, O.C.G.A. § 16-12-141(b)(1); and mandates specialized
reporting for abortion, O.C.G.A. §§ 31-9B-3(a), 31-10-19, 16-12-141.1, 16-12143, among other regulations.

4

Current Georgia law prohibits abortion at “20 weeks or more,” O.C.G.A. §
16-12-141(c)(1), “from the time of fertilization,” O.C.G.A. § 31-9B-1(5). Medical
standards date pregnancy based on last menstrual period. Because fertilization
typically occurs at two weeks lmp, current Georgia law bans abortions at 22 weeks
lmp.
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35.

H.B. 481 makes a series of amendments to Georgia laws related to

abortion and to laws not heretofore related to abortion. Specifically, H.B. 481 bans
almost all abortions and makes sweeping changes to Georgia’s definition of
“natural person” in an effort to justify the abortion ban.
36.

Section 2 of H.B. 481 declares that it is the policy of the State of

Georgia to recognize embryos/fetuses “as natural persons,” H.B. 481 § 2(6); see
also id. §§ 2(2), (5), purporting to promote a “more expansive state recognition of”
embryos/fetuses “as persons” than “exist[ed] when Planned Parenthood v. Casey
(1992) and Roe v. Wade (1973) established abortion related precedents,” id. § 2(3).
37.

Section 3 of H.B. 481 amends O.C.G.A. § 1-2-1 – which contains

definitions of “Persons and their Rights” that apply throughout the Georgia Code –
to define “natural person” as including “any human being including an unborn
child,” and defines “unborn child” as an embryo/fetus “at any stage of
development” in utero. H.B. 481 § 3 (creating new O.C.G.A § 1-2-1(b), (e)(2)). It
mandates the inclusion in “population based determinations” of all “natural
persons,” including embryos/fetuses in utero with “a detectable human heartbeat,”
defined as “embryonic or fetal cardiac activity or the steady and repetitive
rhythmic contraction of the heart within the gestational sac.” Id. (creating new
O.C.G.A § 1-2-1(d)-(e)).
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38.

Because Section 3’s new definition of “natural person” is not limited

to H.B. 481, and appears to apply to the relevant terms throughout the entire
Georgia code, the impact of Section 3’s new definition of “natural person,” when
read in conjunction with other parts of the Georgia code, is vague and potentially
vast. For example, pursuant to O.C.G.A. § 16-5-60, a person commits the crime of
“Reckless Conduct” when he or she “causes bodily harm to or endangers the
bodily safety of another person by consciously disregarding a substantial and
unjustifiable risk that his act or omission will cause harm or endanger the safety of
the other person.” Under this provision, it is unclear what potentially “risky”
behavior could be deemed criminally reckless inasmuch as “person” is now redefined to mean an embryo/fetus. Section 3 renders numerous other provisions of
the Georgia code similarly vague. See, e.g., O.C.G.A § 16-5-70 (cruelty to
children); § 16-5-21 (aggravated assault); § 16-12-171 (sale or distribution to, or
possession by, minors of cigarettes and tobacco related objects); § 19-7-5
(reporting of child abuse).
39.

Under Section 4 of H.B. 481, “[n]o abortion is authorized or shall be

performed if an” embryo/fetus “has been determined in accordance with Code
Section 31-9B-2 to have a detectable human heartbeat,” and “[n]o abortion is
authorized or shall be performed in violation of subsection (a) of Code Section 3117

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9B-2.” H.B. 481 § 4 (amending O.C.G.A. § 16-12-141(b); creating new O.C.G.A.
§ 16-12-141(d)). H.B. 481 accordingly amends O.C.G.A. § 31-9B-2, “relating to
physician’s obligation in performance of abortions,” to require “a determination of
the presence of a detectable human heartbeat, as such term is defined in Code
Section 1-2-1.” H.B. 481 § 10 (amending O.C.G.A. § 31-9B-2(a)).
40.

Under Section 4 of H.B. 481, “abortion” does not include removing an

“ectopic pregnancy” or a “dead” embryo/fetus “caused by a spontaneous abortion.”
However, unless “a spontaneous abortion” (sometimes called miscarriage) has
already caused embryonic/fetal demise, H.B. 481 prohibits completing the
miscarriage. H.B. 481 § 4 (amending O.C.G.A. §§ 16-12-141(a)(1)(A), (a)(5)).
41.

Section 4 of H.B. 481 has three very limited exceptions. It permits

otherwise banned care only when:
a. a “medical emergency” exists, defined as “a condition in which an
abortion is necessary in order to prevent the death of the pregnant
woman or the substantial and irreversible physical impairment of a
major bodily function of the pregnant woman.” It does not allow
abortion care necessary to reduce the risk of death or substantial harm;
to prevent substantial but reversible physical impairment of a major
bodily function; to prevent less than substantial but irreversible
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physical impairment of a major bodily function; or to prevent
substantial and irreversible physical impairment of a non-major bodily
function. This exception also does not allow care that is necessary to
prevent death or substantial impairment that would result from “a
diagnosis or claim of a mental or emotional condition . . . or that the
pregnant woman will purposefully engage in” self harm. H.B. 481 §§
4(a)(3), 4(b)(1). H.B. 481 will force a patient with such non-exempted
medical conditions to remain pregnant, notwithstanding the risk to her
life and health;
b. the pregnancy is at or below 20 weeks post-fertilization and is the
result of rape or incest in which an official police report has been filed
alleging the offense of rape or incest. H.B. 481 § 4(b)(2); or
c. the “physician determines, in reasonable medical judgment, that the
pregnancy is medically futile,” defined as “a profound and
irremediable congenital or chromosomal anomaly that is incompatible
with sustaining life after birth.” H.B. 481 §§ 4(a)(4), (b)(3).
42.

Violation of Section 4 of H.B. 481 is punishable by imprisonment of

one to ten years. O.C.G.A. § 16-12-140(b). Such a violation also exposes a
physician to licensing penalties up to and including revocation, because it both
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constitutes “unprofessional conduct” under O.C.G.A. § 43-34-8(a)(7); H.B. 481 §
10(b), and constitutes independent grounds for such discipline, O.C.G.A. § 43-348(a)(8). See also O.C.G.A. § 43-34-8(b)(1)(F) (penalties include license
revocation). A patient may also bring a civil action for violation of Section 4. H.B.
481 § 4(g).
43.

Section 4 provides affirmative defenses if a physician, nurse,

physician assistant, or pharmacist “provide[d] care for a pregnant woman which
results in the accidental or unintentional injury or death of an” embryo/fetus, H.B.
481 §§ 4(h)(1-4), and if “[a] woman sought an abortion because she reasonably
believed that an abortion was the only way to prevent a medical emergency.” H.B.
481 § 4(h)(5). Once a prosecutor proves the prima facie case of a violation of H.B.
481, an accused may try to escape conviction and incarceration by raising the
applicable affirmative defense, but bears the burden of proving the elements of that
defense to a jury.
44.

Sections 7 through 9 and 11 of H.B. 481 amend Georgia’s abortion

informed consent and abortion reporting statutes to mandate that the information
the patient receives 24 hours before an abortion include “the presence of . . .
detectable” embryonic/fetal cardiac activity, H.B. 481 § 7, to mandate that the
Department of Public Health materials available to abortion patients refer to
20

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detectable cardiac activity, H.B. 481 § 8, and to reflect the ban on abortion where
there is detectable embryonic/fetal cardiac activity, H.B. 481 § 11.
FACTUAL ALLEGATIONS
45.

Georgians who seek clinical abortion care will struggle and suffer

under H.B. 481. Those who can will travel of out of state, though for many, such
travel will delay care and impose other hardships; others will remain pregnant and
give birth against their will; still others will end their own pregnancies or seek care
outside the regulated clinical setting, which will expose some women to increased
risk of harm. H.B. 481 will be particularly devastating for low-income Georgians,
Georgians of color, and rural Georgians, who are already least able to access
medical care, and who have the least resources to navigate the law’s cruelties.
46.

Women seek abortions for a variety of deeply personal reasons,

including familial, medical, and financial. Some women have abortions because
they conclude that it is not the right time in their lives to have a child or to add to
their families. For example, some decide to end a pregnancy because they want to
pursue their education; some because they feel they lack the economic resources or
level of partner support or stability they want to raise children; some because they
are concerned that if they increase their family size, they will be unable to provide
and care adequately for their existing children and/or for their ill or dying parents.
21

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Others end a pregnancy in order to be able to leave an abusive partner. Some
women seek abortions to preserve their life or health by reducing their risk of
injury or death; some because they have become pregnant as a result of rape or
incest; and others because they decide not to have children at all. Some women
decide to have an abortion because of a diagnosed fetal medical condition. Some
families feel they do not have the societal or personal resources—financial,
medical, educational, or emotional—to care for a child with physical or intellectual
disabilities, or to do so and simultaneously provide for their existing children. The
decision to terminate a pregnancy is motivated by a constellation of diverse,
complex, and interrelated factors, intimately related to the individual’s core
religious beliefs, values, and family circumstances.
47.

Approximately one in four women in this country will have an

abortion by age forty-five. A majority of women having abortions (61%) already
have at least one child, while most (66%) also plan to have a child or additional
children in the future.5
5

See Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates
and Lifetime Incidence of Abortion: United States, 2008-2014, 107 AM. J. PUBLIC
HEALTH 1904 (2017),
https://ajph.aphapublications.org/doi/10.2105/AJPH.2017.304042; News Release,
Guttmacher Inst., Concern for Current and Future Children a Key Reason Women
Have Abortions, (Jan. 7, 2008), https://www.guttmacher.org/news. . . footnote continues on next page

22

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Medical Background
48.

Almost uniformly, clinicians measure pregnancy from the first day of

a woman’s last menstrual period (“lmp”). A full term pregnancy is approximately
forty weeks lmp.
49.

Some women have fairly regular menstrual cycles, and four weeks is a

typical cycle; other women have regular cycles of different lengths; and still others
have irregular cycles. In a person with regular monthly periods, fertilization
typically occurs two weeks after lmp – that is, two weeks after the first day of the
last menstrual period. A woman with a highly regular, four-week cycle would be
four weeks lmp when she misses her period.
50.

In a typically developing embryo, cells that eventually form the basis

for development of the heart later in pregnancy produce cardiac activity that is
generally detectible – via ultrasound – beginning at approximately six weeks lmp.6

release/2008/concern-current-and-future-children-key-reason-women-haveabortions; Abortion Facts, Nat’l Abortion Fed’n, https://prochoice.org/educationand-advocacy/about-abortion/abortion-facts/ (last visited June 26, 2019).
6

See Thomas Gellhaus, M.D., ACOG Opposes Fetal Heartbeat Legislation
Restricting Women’s Legal Right to Abortion, Am. Cong. Obstetricians &
Gynecologists (Jan. 18, 2017), https://www.acog.org/About-ACOG/NewsRoom/Statements/2017/ACOG-Opposes-Fetal-Heartbeat-Legislation-RestrictingWomens-Legal-Right-to-Abortion.
23

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51.

The great majority of abortion patients are simply not able to confirm

a pregnancy and schedule and obtain an abortion before 6 weeks lmp.
52.

Prior to and even after six weeks lmp, many women do not know they

are pregnant – particularly the many women who have irregular cycles, who have
certain medical conditions, who have been using contraceptives, or who are
breastfeeding.
53.

Even for women with highly regular four-week cycles, six weeks lmp

is a mere two weeks after they will have missed their period.
54.

The great majority of abortions take place at or after six weeks lmp.

55.

The U.S. Supreme Court has defined viability as a reasonable

likelihood of sustained survival outside the uterus, with or without artificial aid.
56.

Six weeks is a previability point in pregnancy: Viability does not

occur until months later.
57.

Legal abortion is one of the safest medical procedures in the United

States. A woman’s risk of death associated with childbirth is approximately 14
times higher than that associated with abortion, and every pregnancy-related

24

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complication is more common among women giving birth than among those
having abortions.7
58.

According to the Centers for Disease Control and Prevention,

pregnancy is becoming more dangerous, with pregnancy-related deaths on the rise
across the United States.8
59.

Georgians face one of the highest risks of pregnancy-related death in

the nation,9 and pregnancy is three times as deadly for Black Georgians as it is for
white Georgians.10 As Defendant Commissioner Toomey’s Department of Public

7

Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of
Legal Induced Abortion and Childbirth in the United States, 119 OBSTETRICS &
GYNECOLOGY 215, 215 (Feb. 2012).
8

Ctr. for Disease Control & Prevention, Pregnancy Mortality Surveillance
System, https://www.cdc.gov/reproductivehealth/maternalinfanthealth/pregnancymortality-surveillance-system.htm (last reviewed June 26, 2019).
9

America’s Health Rankings, United Health Found., Maternal Mortality
(2019), https://www.americashealthrankings.org/explore/health-of-women-andchildren/measure/maternal_mortality (analyzing data from CDC WONDER Online
Database, 2011-2015).
10

In Georgia, “[b]etween 2012-2014, Black non-Hispanic women were
about 3.3 times more likely to die due to pregnancy-related complications than
White, non-Hispanic women.” Ga. Dep’t Pub. Health, Maternal Mortality Review
Comm., Maternal Mortality Report 2014 (March 2019) at 11,
https://dph.georgia.gov/sites/dph.georgia.gov/files/related_files/site_page/Maternal
%20Mortality%20BookletGeorgia.FINAL_.hq_.pdf.
. . . footnote continues on next page

25

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Health has recognized, the State could do a great deal to drive down this shameful
statistic and save women’s lives: In Georgia, “[b]etween 2012-2014, 61% of
pregnancy-related deaths were determined to be preventable.”11
Devastating Impact of HB 481
60.

HB 481 will ban the great majority of abortions, depriving Georgians

of their constitutional rights. It will have a devastating impact.
61.

As between maintaining a pregnancy or having an abortion, H.B. 481

would mandate the medically far riskier course, regardless of whether it is contrary
to an individual patient’s will. Forcing a woman to continue a pregnancy against
her will can pose a risk to her physical, mental, and emotional health, and even her
life, as well as to the stability and wellbeing of her family, including her existing
children.
62.

Even those able to overcome the obstacles to accessing care outside

Georgia would be delayed, which would increase the risks of the care: although
abortion is extremely safe, the risks associated with pregnancy increase as
pregnancy advances.

11

Id. at 20.
26

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63.

H.B. 481’s three narrow exceptions provide little relief from its near

complete ban on abortions.
64.

First, H.B. 481 will force women pregnant as a result of sexual assault

to continue their pregnancies against their will. H.B. 481’s exception for sexual
assault survivors applies only before 20 weeks post-fertilization, and only when
“an official police report has been filed alleging the offense of rape or incest.” §
4(b)(2). Many survivors of these crimes are never able to file a police report for
many reasons, including that they fear violent retaliation by the rapist, that they are
coping with trauma, or that filing a report would deepen their trauma. Many more
are unable to file a police report within the timeframe that H.B. 481 requires to
abort a pregnancy resulting from those crimes. Plaintiffs’ abortion patients include
survivors of rape or incest who have not filed police reports.
65.

Second, there are severe and potentially lethal fetal conditions that

lead women to decide to have an abortion, but that would not satisfy H.B. 481’s
narrow exception for “medically futile” pregnancies, which is limited to the
presence of “a profound and irremediable congenital or chromosomal anomaly that
is incompatible with sustaining life after birth.” H.B. 481 § 4 (amending O.C.G.A.
§ 16-12-141(a)(4)). For example, in the condition severe diaphragmatic hernia, the
fetal intestines impinge on the lungs and prevent their development, which can
27

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result in a stillbirth. If a baby is born with this condition, surgeries may allow
breathing, or such surgeries may fail, resulting in death. Yet, these and many other
similarly severe conditions would not qualify as “medically futile” under H.B. 481.
66.

Third, H.B. 481’s “medical emergency” exception is so limited that

the ban would block care even for many women who desperately need abortions to
protect their health, including some of Plaintiffs’ patients. A patient who was not
in, or who had not yet deteriorated to the point that she was in, a medical
emergency as narrowly defined would have to remain pregnant, regardless of the
harm to her health.
a. In one of many examples, high blood pressure can worsen as
pregnancy advances. In some patients, this leads to serious conditions
during pregnancy including pre-eclampsia, eclampsia, cardiac
hypertrophy, heart attack, and stroke; for some patients, remaining
pregnant with high blood pressure can lead to heart or kidney damage
well after pregnancy. Some patients with this profile seek abortion
care to avoid these serious risks; others remain pregnant and have
their physicians manage the risk as best as possible; and of those,
some later decide that the risk has passed the point that they deem
acceptable, and they have an abortion. But unless such a patient had
28

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deteriorated to the point of a “medical emergency” as defined in H.B.
481, she would have to remain pregnant and be exposed to those nearterm and long-term medical risks.
b. In another example, patients also include women with underlying
cardiac disease, which greatly increases the risk that pregnancy will
kill or harm the woman – during pregnancy or perhaps years later. A
woman with cardiac disease may be reasonably healthy at 8 weeks
lmp, and her doctors may well be able to manage her condition
reasonably well throughout her pregnancy. But for many other
patients, it is only much later in pregnancy – around 28 weeks, when
pregnancy places much higher stress on the woman’s heart – that the
condition becomes critical. To protect themselves from the risk that
their condition will become critical, many patients with cardiac
disease seek abortion care earlier in pregnancy, when they are still
reasonably healthy. At that point, with real concern and yet
uncertainty that the condition would dramatically worsen in the third
trimester for this particular patient, the physician would not be able to
say that an abortion was “necessary . . . to prevent” her “death . . . or
the substantial and irreversible physical impairment of a major bodily
29

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function.” H.B. 481 § 4(a)(3). Under H.B. 481, such a patient would
remain pregnant and face those risks, against her will.
67.

Moreover, under H.B. 481, pregnant Georgians will also face

increased risk of injury or death as a result of miscarriage, which is common at and
after six weeks lmp. In the great majority of cases, a woman miscarrying would not
fall within any of Section 4’s limited exceptions, including the narrow exception
for a “medical emergency.”
a. In some cases of miscarriage (sometimes called spontaneous
abortion), the process of pregnancy loss itself ends embryonic/fetal
cardiac activity. In those cases, H.B. 481 would allow a woman to
access medical care to empty her uterus. See H.B. 481 § 4 (amending
O.C.G.A. § 16-12-141(a)(1)(A)).
b. However, in other cases of miscarriage, cardiac activity persists while
the woman is actively miscarrying. In those cases as well, the
standard of care is to offer a patient medical treatment to empty her
uterus, but H.B. 481 would tie the doctor’s hands. In those instances,
H.B. 481 will force a woman to continue undergoing the miscarriage,
regardless of how desperately she wants to complete the inevitable
loss of her pregnancy, and regardless of the medical risks she faces –
30

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unless and until her condition deteriorates to the point of a “medical
emergency” as H.B. 481 narrowly defines it. This would be true
starting at six weeks – months before there is any possibility of
survival outside the uterus. While actively miscarrying, a woman
experiences some combination of symptoms including bleeding,
cramping, partially passing the embryo/fetus, physical pain, emotional
pain, and risk of infection.
c. Denying that treatment for miscarriage management would only
increase the already high maternal mortality rate that Georgians face,
including Plaintiffs’ patients and SisterSong’s members. It would also
cruelly force women to endure needlessly prolonged physical and
mental anguish.
68.

In addition, the vagueness created by Section 3’s definition of “natural

person,” as well as Section 4’s affirmative defenses for clinicians whose care
accidentally harms an embryo/fetus, threatens a wide range of treatment for
patients who are or may be pregnant. After getting a measles, mumps, rubella
vaccine, for example, a woman should avoid pregnancy for several weeks; if she
does not, accidental harm to the embryo can result. Certain common antibiotics
such as tetracycline can harm an embryo, and there is no way to rule out pregnancy
31

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definitively before prescribing or dispensing them: even were a clinician and
pharmacist to insist on a blood pregnancy test – rather than rely on a patient’s
potentially incorrect report that she is not pregnant – such tests show negative
results in the first days of pregnancy. When a pregnant woman requires surgery –
to treat a ruptured appendix, for example – the physician may cause a miscarriage,
and the anesthesia can harm the embryo/fetus by causing the woman’s blood
pressure or oxygen saturation to fall. Under H.B. 481, clinicians and others in the
care team will be chilled from providing routine care – and, critically, specialized
care – to pregnant patients that may result in accidental injury to an embryo or
fetus. H.B. 481 Section 4’s affirmative defenses provide no comfort. First,
providers must still fear prosecution under Section 4, in which they would have to
raise and prove as an affirmative defense that the impact on the pregnancy was
accidental. Second, H.B. 481’s affirmative defenses would not protect against civil
or criminal liability under the many other parts of the Georgia code that H.B. 481’s
new definition of “natural person” alters. By threatening the provision of a wide
range of medical care for people who are or may be pregnant, H.B. 481 will only
increase the medical risks that Plaintiffs’ patients and members face.
69.

Finally, pregnancy-related deaths are so high in Georgia in part

because of the state’s critical shortage of obstetrician-gynecologists, particularly in
32

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rural areas. By threatening obstetrician-gynecologists with criminal penalties for
abortion and other standard-of-care treatment, H.B. 481 can only drive doctors out
of Georgia, exacerbating the crisis.
_______________________
70.

As SisterSong represents the needs and rights of the most oppressed

communities, absent an injunction, H.B. 481 would force SisterSong to divert its
scarce time and resources away from other aspects of its crucial work to help
Georgians access abortion care out of state and otherwise adjust to H.B. 481’s
sweeping impact. SisterSong is already fielding inquiries from Georgians panicked
about obtaining abortions because of H.B. 481. Its members are among the people
who would be most devastated were H.B. 481 to take effect.
71.

Absent an injunction, Plaintiff clinics and physicians will have no

choice but to turn away patients in need of banned care. Their patients would suffer
the irreparable harm of gross violations of their constitutional rights, assault to
their dignity, and the unconscionable imposition of risks to their health and lives.

33

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CLAIMS FOR RELIEF
COUNT I
(Substantive Due Process / Privacy and Liberty)
72.

Plaintiffs reallege and incorporate by reference the allegations

contained in in Paragraphs 1 through 71.
73.

By prohibiting an individual from making the ultimate decision

whether to continue or to terminate a pregnancy prior to viability, H.B. 481
violates Georgians’ right to privacy and liberty secured by the Fourteenth
Amendment to the United States Constitution.
74.

By redefining the meaning of natural person throughout the entire

Georgia code to include an embryo/fetus in utero at any stage of development,
H.B. 481 infringes on women’s right to abortion and bodily autonomy and thereby
violates Georgians’ right to privacy and liberty secured by the Fourteenth
Amendment to the United States Constitution.
COUNT II
(Due Process / Vagueness)
75.

Plaintiffs reallege and incorporate by reference the allegations

contained in Paragraphs 1 through 71.

34

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76.

It is unclear if and/or how the new definitions in Section 3 of H.B. 481

effectively amend other provisions of the Official Code of Georgia Annotated that
include the term “person” and/or “human being.” These terms appear in the Code
hundreds of times, and they are included in sections of the code that set forth the
scope of, inter alia, criminal acts and civil liability.
77.

These provisions and others, as amended by the new definitions in

Section 3 of H.B. 481, make it impossible for pregnant women and medical
providers to know what actions are forbidden or required, and thus do not provide
adequate guidance as to how they can comply with the law.
78.

Because these provisions, as amended by the new definitions in

Section 3 of H.B. 481, do not clearly define what actions are forbidden or required,
they do not meaningfully limit the actions of law enforcement and do not protect
against arbitrary and discriminatory enforcement.
79.

Because Plaintiffs are unable to determine what is required under the

Official Code of Georgia Annotated, as amended by Section 3 of H.B. 481, H.B.
481 violates Plaintiffs’ rights secured to them by the Due Process guarantees of the
Fourteenth Amendment to the United States Constitution.

35

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REQUEST FOR RELIEF
WHEREFORE, Plaintiffs ask this Court:
A.

To issue a preliminary injunction in advance of the January 1, 2020,

effective date and a permanent injunction restraining Defendants, their employees,
agents, and successors in office from enforcing H.B. 481.
B.

To enter a judgment declaring that H.B. 481 violates the Fourteenth

Amendment to the United States Constitution.
C.

To award Plaintiffs their reasonable attorneys’ fees and costs pursuant

to 42 U.S.C. § 1988.
D.

To grant such other and further relief as the Court deems just and

proper.

36

 Case 1:19-mi-99999-UNA Document 2130 Filed 06/28/19 Page 37 of 60

Respectfully submitted this 28th day of June, 2019.
Susan Talcott Camp*
Rebecca Chan*
Elizabeth Watson*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, INC.
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2633
tcamp@aclu.org
rchan@aclu.org
ewatson@aclu.org

s/ Sean J. Young__________
Sean J. Young (Ga. Bar No. 790399)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF GEORGIA, INC.
P.O. Box 77208
Atlanta, GA 30357
(770) 303-8111 (phone)
(770) 303-0060 (fax)
syoung@acluga.org
Attorney for Plaintiffs

Attorneys for Plaintiffs SisterSong,
ACWC, AWMC, carafem, Summit,
and Drs. Cwiak, Haddad and Lathrop
Carrie Y. Flaxman*
PLANNED PARENTHOOD FEDERATION
OF AMERICA
1110 Vermont Avenue, NW
Suite 300
Washington, DC 20005
(202) 973-4800
carrie.flaxman@ppfa.org
Susan Lambiase*
PLANNED PARENTHOOD FEDERATION
OF AMERICA
123 William St., Floor 9
New York, NY 10038
(212) 541-7800 (phone)
(212) 247-6811 (fax)
susan.lambiase@ppfa.org
Attorneys for PPSE

Julie Rikelman*
Emily Nestler*
Kirby Tyrrell*
CENTER FOR REPRODUCTIVE RIGHTS
199 Water Street, 22nd Floor
New York, NY 10038
(917) 637-3670 (phone)
(917) 637-3666 (fax)
jrikelman@reprorights.org
enestler@reprorights.org
ktyrrell@reprorights.org
Attorneys for Plaintiffs Feminist and
CWHO

*Pro hac vice applications
forthcoming
37

 Case Document 2130 Filed 06/28/19 Page 38 of 60

EXHIBIT A

Case 1:19-mi-99999-UNA Document 2130 Filed 06/28/19 Page 39 of 60

19

HB 481/AP

House Bill 481 (AS PASSED HOUSE AND SENATE)
By: Representatives Setzler of the 35th, Lott of the 122nd, Taylor of the 173rd, Bonner of the
72nd, Ehrhart of the 36th, and others

A BILL TO BE ENTITLED
AN ACT

1

To amend Chapter 2 of Title 1 of the Official Code of Georgia Annotated, relating to persons

2

and their rights, so as to provide that natural persons include an unborn child; to provide that

3

such unborn children shall be included in certain population based determinations; to provide

4

definitions; to amend Article 5 of Chapter 12 of Title 16 of the Official Code of Georgia

5

Annotated, relating to abortion, so as to provide definitions; to revise the time when an

6

abortion may be performed; to provide for exceptions; to provide for the requirements for

7

performing an abortion; to provide for a right of action and damages; to provide for

8

affirmative defenses; to amend Chapter 6 of Title 19 of the Official Code of Georgia

9

Annotated, relating to alimony and child support, so as to provide a definition; to provide a

10

maximum support obligation for certain circumstances; to amend Chapter 7 of Title 19 of the

11

Official Code of Georgia Annotated, relating to parent and child relationship generally, so

12

as to provide that the right to recover for the full value of a child begins at the point when a

13

detectable human heartbeat exists; to amend Chapter 9A of Title 31 of the Official Code of

14

Georgia Annotated, relating to the "Woman's Right to Know Act," so as to provide for

15

advising women seeking an abortion of the presence of a detectable human heartbeat; to

16

provide for the content of certain notices; to repeal certain penalties; to amend Chapter 9B

17

of Title 31 of the Official Code of Georgia Annotated, relating to physician's obligation in

18

performance of abortions, so as to require physicians performing abortions to determine the

19

existence of a detectable human heartbeat before performing an abortion; to provide for the

20

reporting of certain information by physicians; to amend Chapter 7 of Title 48 of the Official

21

Code of Georgia Annotated, relating to income taxes, so as to provide that an unborn child

22

with a detectable human heartbeat is a dependent minor for income tax purposes; to provide

23

for legislative findings; to provide for related matters; to provide for standing to intervene

24

and defend constitutional challenges to this Act; to provide a short title; to provide for

25

severability; to provide an effective date; to repeal conflicting laws; and for other purposes.

26

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

H. B. 481
-1-

 Case 1:19-mi-99999-UNA Document 2130 Filed 06/28/19 Page 40 of 60

19

HB 481/AP

27

SECTION 1.

28

This Act shall be known and may be cited as the "Living Infants Fairness and Equality

29

(LIFE) Act."

30
31

SECTION 2.
The General Assembly of Georgia makes the following findings:

32

(1) In the founding of the United States of America, the State of Georgia and the several

33

states affirmed that: "We hold these Truths to be self-evident, that all Men are created

34

equal, that they are endowed by their Creator with certain unalienable Rights, that among

35

these are Life, Liberty, and the Pursuit of Happiness – that to secure these Rights,

36

Governments are instituted among men;"

37

(2) To protect the fundamental rights of all persons, and specifically to protect the

38

fundamental rights of particular classes of persons who had not previously been

39

recognized under law, the 14th Amendment to the United States Constitution was ratified,

40

providing that, "nor shall any State deprive any person of life, liberty, or property,

41

without due process of law; nor deny any person within its jurisdiction the equal

42

protection of the laws";

43

(3) Modern medical science, not available decades ago, demonstrates that unborn

44

children are a class of living, distinct persons and more expansive state recognition of

45

unborn children as persons did not exist when Planned Parenthood v. Casey (1992) and

46

Roe v. Wade (1973) established abortion related precedents;

47

(4) The State of Georgia, applying reasoned judgment to the full body of modern medical

48

science, recognizes the benefits of providing full legal recognition to an unborn child

49

above the minimum requirements of federal law;

50

(5) Article I, Section I, Paragraphs I and II of the Constitution of the State of Georgia

51

affirm that "[n]o person shall be deprived of life, liberty, or property except by due

52

process of law"; and that "[p]rotection to person and property is the paramount duty of

53

government and shall be impartial and complete. No person shall be denied the equal

54

protection of the laws"; and

55

(6) It shall be the policy of the State of Georgia to recognize unborn children as natural

56

persons.

57

SECTION 3.

58

Chapter 2 of Title 1 of the Official Code of Georgia Annotated, relating to persons and their

59

rights, is amended by revising Code Section 1-2-1, relating to classes of persons generally,

60

corporations deemed artificial persons, and nature of corporations generally, as follows:
H. B. 481
-2-

 Case 1:19-mi-99999-UNA Document 2130 Filed 06/28/19 Page 41 of 60

19

HB 481/AP

61

"1-2-1.

62

(a) There are two classes of persons: natural and artificial.

63

(b) 'Natural person' means any human being including an unborn child.

64

(b)(c) Corporations are artificial persons. They are creatures of the law and, except insofar

65

as the law forbids it, they are subject to be changed, modified, or destroyed at the will of

66

their creator.

67

(d) Unless otherwise provided by law, any natural person, including an unborn child with

68

a detectable human heartbeat, shall be included in population based determinations.

69

(e) As used in this Code section, the term:

70

(1) 'Detectable human heartbeat' means embryonic or fetal cardiac activity or the steady

71

and repetitive rhythmic contraction of the heart within the gestational sac.

72

(2) 'Unborn child' means a member of the species Homo sapiens at any stage of

73

development who is carried in the womb."

74

SECTION 4.

75

Article 5 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to

76

abortion, is amended by revising Code Section 16-12-141, relating to restrictions on the

77

performance of abortions and availability of records, as follows:

78

"16-12-141.

79

(a) No abortion is authorized or shall be performed in violation of subsection (a) of Code

80

Section 31-9B-2.

81

(b)(1) No abortion is authorized or shall be performed after the first trimester unless the

82

abortion is performed in a licensed hospital, in a licensed ambulatory surgical center, or

83

in a health facility licensed as an abortion facility by the Department of Community

84

Health.

85

(2) An abortion shall only be performed by a physician licensed under Article 2 of

86

Chapter 34 of Title 43.

87

(c)(1)(a) As used in this article, the term:

88

(1) 'Abortion' means the act of using, prescribing, or administering any instrument,

89

substance, device, or other means with the purpose to terminate a pregnancy with

90

knowledge that termination will, with reasonable likelihood, cause the death of an unborn

91

child; provided, however, that any such act shall not be considered an abortion if the act

92

is performed with the purpose of:

93

(A) Removing a dead unborn child caused by spontaneous abortion; or

94

(B) Removing an ectopic pregnancy.

95

(2) 'Detectable human heartbeat' means embryonic or fetal cardiac activity or the steady

96

and repetitive rhythmic contraction of the heart within the gestational sac.
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(3) 'Medical emergency' means a condition in which an abortion is necessary in order to

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prevent the death of the pregnant woman or the substantial and irreversible physical

99

impairment of a major bodily function of the pregnant woman. No such greater risk shall

100

be deemed to exist if it is based on a diagnosis or claim of a mental or emotional

101

condition of the pregnant woman or that the pregnant woman will purposefully engage

102

in conduct which she intends to result in her death or in substantial and irreversible

103

physical impairment of a major bodily function.

104

(4) 'Medically futile' means that, in reasonable medical judgment, an unborn child has

105

a profound and irremediable congenital or chromosomal anomaly that is incompatible

106

with sustaining life after birth.

107

(5) 'Spontaneous abortion' means the naturally occurring death of an unborn child,

108

including a miscarriage or stillbirth.

109

(b) No abortion is authorized or shall be performed if the probable gestational age of the

110

an unborn child has been determined in accordance with Code Section 31-9B-2 to be 20

111

weeks or more unless the pregnancy is diagnosed as medically futile, as such term is

112

defined in Code Section 31-9B-1, or in reasonable medical judgment, the abortion is

113

necessary to have a detectable human heartbeat except when:

114

(A)(1) Avert the death of the pregnant woman or avert serious risk of substantial and

115

irreversible physical impairment of a major bodily function of the pregnant woman. No

116

such condition shall be deemed to exist if it is based on a diagnosis or claim of a mental

117

or emotional condition of the pregnant woman or that the pregnant woman will

118

purposefully engage in conduct which she intends to result in her death or in substantial

119

and irreversible physical impairment of a major bodily function A physician determines,

120

in reasonable medical judgment, that a medical emergency exists; or

121

(B)(2) Preserve the life of an unborn child The probable gestational age of the unborn

122

child is 20 weeks or less and the pregnancy is the result of rape or incest in which an

123

official police report has been filed alleging the offense of rape or incest. As used in this

124

paragraph, the term 'probable gestational age of the unborn child' has the meaning

125

provided by Code Section 31-9B-1; or

126

(3) A physician determines, in reasonable medical judgment, that the pregnancy is

127

medically futile.

128

As used in this paragraph, the term 'probable gestational age of the unborn child' has the

129

meaning provided by Code Section 31-9B-1.

130

(2) In any case described in subparagraph (A) or (B) of paragraph (1) of this subsection,

131

the physician shall terminate the pregnancy in the manner which, in reasonable medical

132

judgment, provides the best opportunity for the unborn child to survive unless, in

133

reasonable medical judgment, termination of the pregnancy in that manner would pose
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a greater risk either of the death of the pregnant woman or of the substantial and

135

irreversible physical impairment of a major bodily function of the pregnant woman than

136

would another available method. No such greater risk shall be deemed to exist if it is

137

based on a diagnosis or claim of a mental or emotional condition of the pregnant woman

138

or that the pregnant woman will purposefully engage in conduct which she intends to

139

result in her death or in substantial and irreversible physical impairment of a major bodily

140

function. If the child is capable of sustained life, medical aid then available must be

141

rendered.

142

(c) In conducting an abortion, if the child is capable of sustained life, medical aid then

143

available shall be rendered.

144

(d) No abortion is authorized or shall be performed in violation of subsection (a) of Code

145

Section 31-9B-2.

146

(e)(1) No abortion is authorized or shall be performed after the first trimester unless the

147

abortion is performed in a licensed hospital, in a licensed ambulatory surgical center, or

148

in a health facility licensed as an abortion facility by the Department of Community

149

Health.

150

(2) An abortion shall only be performed by a physician licensed under Article 2 of

151

Chapter 34 of Title 43.

152

(d)(f) Hospital or other licensed health facility Health records shall be available to the

153

district attorney of the judicial circuit in which the hospital or health facility is located act

154

of abortion occurs or the woman upon whom an abortion is performed resides.

155

(g) Any woman upon whom an abortion is performed in violation of this Code section may

156

recover in a civil action from the person who engaged in such violation all damages

157

available to her under Georgia law for any torts.

158

(h) It shall be an affirmative defense to prosecution under this article if:

159

(1) A licensed physician provides medical treatment to a pregnant woman which results

160

in the accidental or unintentional injury to or death of an unborn child;

161

(2) An advanced practice registered nurse or registered professional nurse, as such terms

162

are defined in Code Section 43-26-3, or a licensed practical nurse, as such term is defined

163

in Code Section 43-26-32, engages in the practice of nursing to provide care for a

164

pregnant woman which results in the accidental or unintentional injury to or death of an

165

unborn child;

166

(3) A licensed pharmacist engages in the practice of pharmacy, as such term is defined

167

in Code Section 26-4-4, to provide care for a pregnant woman which results in the

168

accidental or unintentional injury or death of an unborn child;

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(4) A licensed physician assistant, as such term is defined in Code Section 43-34-102,

170

provides care to a pregnant woman which results in the accidental or unintentional injury

171

to or death of an unborn child; or

172

(5) A woman sought an abortion because she reasonably believed that an abortion was

173

the only way to prevent a medical emergency."

174

SECTION 5.

175

Chapter 6 of Title 19 of the Official Code of Georgia Annotated, relating to alimony and

176

child support, is amended by revising paragraph (4) of subsection (a) of Code

177

Section 19-6-15, relating to child support, guidelines for determining amount of award,

178

continuation of duty of support, and duration of support, and by adding a new subsection to

179

read as follows:

180

"(4) 'Child' means child or children Reserved."

181

"(a.1)(1) As used in this chapter, the term 'child' means child or children, including any

182

unborn child with a detectable human heartbeat as such terms are defined in Code

183

Section 1-2-1.

184

(2) Notwithstanding any provision of this Code section to the contrary, the maximum

185

amount of support which the court may impose on the father of an unborn child under this

186

Code section shall be the amount of direct medical and pregnancy related expenses of the

187

mother of the unborn child. After birth, the provisions of this Code section shall apply

188

in full."

189

SECTION 6.

190

Chapter 7 of Title 19 of the Official Code of Georgia Annotated, relating to parent and child

191

relationship generally, is amended by revising paragraph (1) of subsection (c) of Code

192

Section 19-7-1, relating to in whom parental power lies, how such power lost, and recovery

193

for homicide of child, as follows:

194

"(c)(1) In every case of the homicide of a child, minor or sui juris, there shall be some

195

party entitled to recover the full value of the life of the child, either as provided in this

196

Code section or as provided in Chapter 4 of Title 51. For the homicide of an unborn

197

child, the right to recover for the full value of the life of such child shall begin at the point

198

at which a detectable human heartbeat, as such term is defined in Code Section 1-2-1, is

199

present."

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SECTION 7.

201

Chapter 9A of Title 31 of the Official Code of Georgia Annotated, relating to the "Woman's

202

Right to Know Act," is amended by revising paragraph (1) of Code Section 31-9A-3, relating

203

to voluntary and informed consent to abortion and availability of ultrasound, as follows:

204

"(1) The female is told the following, by telephone or in person, by the physician who

205

is to perform the abortion, by a qualified agent of the physician who is to perform the

206

abortion, by a qualified agent of a referring physician, or by a referring physician, at

207

least 24 hours before the abortion:

208

(A) The particular medical risks to the individual patient associated with the particular

209

abortion procedure to be employed, when medically accurate;

210

(B) The probable gestational age and presence of a detectable human heartbeat, as such

211

term is defined in Code Section 1-2-1, of the an unborn child at the time the abortion

212

would be performed; and

213

(C) The medical risks associated with carrying the an unborn child to term.

214

The information required by this paragraph may be provided by telephone without

215

conducting a physical examination or tests of the patient, in which case the information

216

required to be provided may be based on facts supplied to the physician by the female and

217

whatever other relevant information is reasonably available to the physician. Such

218

information may not be provided by a tape recording but must be provided during a

219

consultation in which the physician or a qualified agent of the physician is able to ask

220

questions of the female and the female is able to ask questions of the physician or the

221

physician's qualified agent. If in the medical judgment of the physician any physical

222

examination, tests, or other information subsequently provided to the physician requires

223

a revision of the information previously supplied to the patient, that revised information

224

shall be communicated to the patient prior to the performance of the abortion. Nothing

225

in this Code section may be construed to preclude provision of required information in

226

a language understood by the patient through a translator;"

227

SECTION 8.

228

Said chapter is further amended by revising paragraph (3) of subsection (a) of Code

229

Section 31-9A-4, relating to information to be made available by the Department of Public

230

Health, format requirements, availability, and requirements for website, as follows:

231

"(3) Materials with the following statement concerning unborn children with a detectable

232

human heartbeat, as such term is defined in Code Section 1-2-1, and of 20 weeks' or more

233

gestational age:

234

'As early as six weeks' gestation, an unborn child may have a detectable human

235

heartbeat. By 20 weeks' gestation, the an unborn child has the physical structures
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necessary to experience pain. There is evidence that by 20 weeks' gestation unborn

237

children seek to evade certain stimuli in a manner which in an infant or an adult would

238

be interpreted to be a response to pain. Anesthesia is routinely administered to unborn

239

children who are 20 weeks' gestational age or older who undergo prenatal surgery.'

240

The materials shall be objective, nonjudgmental, and designed to convey only accurate

241

scientific information about the an unborn child at the various gestational ages."

242

SECTION 9.

243

Said chapter is further amended by repealing in its entirety Code Section 31-9A-6.1, relating

244

to civil and professional penalties for violations and prerequisites for seeking penalties.

245

SECTION 10.

246

Chapter 9B of Title 31 of the Official Code of Georgia Annotated, relating to physician's

247

obligation in performance of abortions, is amended by revising Code Section 31-9B-2,

248

relating to requirement to determine probable gestational age of unborn child, as follows:

249

"31-9B-2.

250

(a) Except in the case of a medical emergency or when a pregnancy is diagnosed as

251

medically futile, no abortion shall be performed or attempted to be performed unless the

252

physician performing it such procedure has first made a determination of the probable

253

gestational age presence of a detectable human heartbeat, as such term is defined in Code

254

Section 1-2-1, of the an unborn child or relied upon such a determination made by another

255

physician.

256

(b) Failure In addition to any criminal or civil penalties provided by law, failure by any

257

physician to conform to any requirement of this Code section constitutes unprofessional

258

conduct for purposes of paragraph (7) of subsection (a) of Code Section 43-34-8 relating

259

to medical licensing sanctions."

260

SECTION 11.

261

Said chapter is further amended by revising subsection (a) of Code Section 31-9B-3, relating

262

to required reporting of physicians and departments, confidentiality, and failure to comply,

263

as follows:

264

"(a) Any physician who performs or attempts to perform an abortion shall report to the

265

department, in conjunction with the reports required under Code Section 31-9A-6 and in

266

accordance with forms and rules and regulations adopted and promulgated by the

267

department:

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(1) If a determination of probable gestational age was made detectable human heartbeat,

269

as such term is defined in Code Section 1-2-1, exists, the probable gestational age,

270

determined and the method and basis of the determination;

271

(2) If a determination of probable gestational age was not made, the basis of the

272

determination that a medical emergency existed or that a pregnancy was diagnosed as

273

medically futile;

274

(3)(2) If the probable gestational age was determined to be 20 or more weeks a

275

detectable human heartbeat, as such term is defined in Code Section 1-2-1, exists, the

276

basis of the determination that the pregnant woman had a medically futile pregnancy, that

277

a medical emergency existed, or that the pregnancy was the result of rape or incest or had

278

a condition which so complicated her medical condition as to necessitate the termination

279

of her pregnancy to avert her death or to avert serious risk of substantial and irreversible

280

physical impairment of a major bodily function, or the basis of the determination that it

281

was necessary to preserve the life of an unborn child; and

282

(4)(3) The method used for the abortion and, in the case of an abortion performed when

283

the probable gestational age was determined to be 20 or more weeks, whether the method

284

of abortion used was one that, in reasonable medical judgment, provided the best

285

opportunity for the unborn child to survive or, if such a method was not used, the basis

286

of the determination that the pregnancy was medically futile or that termination of the

287

pregnancy in that manner would pose a greater risk either of the death of the pregnant

288

woman or of the substantial and irreversible physical impairment of a major bodily

289

function of the pregnant woman than would other available methods."

290

SECTION 12.

291

Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to income taxes,

292

is amended by revising subsection (a) of Code Section 48-7-26, relating to personal

293

exemptions, as follows:

294

"(a) As used in this Code section, the term 'dependent' shall have the same meaning as in

295

the Internal Revenue Code of 1986; provided, however, that any unborn child with a

296

detectable human heartbeat, as such terms are defined in Code Section 1-2-1, shall qualify

297

as a dependent minor."

298

SECTION 13.

299

Any citizen of this state shall have standing and the right to intervene and defend in any

300

action challenging the constitutionality of any portion of this Act.

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301
302

HB 481/AP
SECTION 14.

All provisions of this Act shall be severable in accordance with Code Section 1-1-3.

303

SECTION 15.

304

This Act shall become effective on January 1, 2020.

305

SECTION 16.

306

All laws and parts of laws in conflict with this Act are repealed.

H. B. 481
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 Case Document 2130 Filed 06/28/19 Page 49 of 60

 

Case Document 2130 Filed 06/28/19 Page 50 of 60

DECLARATION

I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to SisterSong
Women of Color Reproductive Justice Collective (?SisterSong?) are true and
correct to the best of my knowledge and belief.

m?p



Monica Simpson

Executive Director
SisterSong

Executed on Date: (I

Case Document 2130 Filed 06/28/19 Page 51 of 60

DECLARATION
I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to Feminist

Women?s Health Center are true and correct to the best of my knowledge and

   
  

Kwajel nJ Jackson

Executive Director
Feminist Women?s Health Center

Executed on Date: (0 79 i 0i

Case Document 2130 Filed 06/28/19 Page 52 of 60

DECLARATION
I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to Planned

Parenthood Southeast, Inc., are true and correct to the best of my knowledge and

am
Fox 

President and Chief Executive Of?cer
Flamed Parenthood Southeast, Inc.

fol/act] r1

belief.

Case Document 2130 Filed 06/28/19 Page 53 of 60

DECLARATION

I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to Atlanta
Comprehensive Wellness Clinic are true and correct to the best of my

knowledge and belief.

 

4% 

Dr. Tamer Middleton

Atlanta Comprehensive Wellness Clinic

Executed on Date: /7

 

Case Document 2130 Filed 06/28/19 Page 54 of 60

DECLARATION

I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to Atlanta
Women?s Medical Center are true and correct to the best of my

knowledge and belief.



ggfizabeth Barnes
President
The Women?s Centers

Executed on Date: if

 

Case Document 2130 Filed 06/28/19 Page 55 of 60

DECLARATION

 

I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to FemHealth USA

d/b/a carafem are true and correct to the best of my knowledge and belief.

Melissa Grant
Chief Operations Of?cer
FemHealth USA d/b/a carafem

 

Executed on Date: (9461? 1 Ci:

 

 

Case Document 2130 Filed 06/28/19 Page 56 of 60

DECLARATION

I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to Columbus
Women?s Health Organization, PC. are true and correct to the best of my

knowledge and belief.

at" 
it- Lilli/we )Q?bm ?1ou

Shannon L. Brewer
Director
Columbus Women?s Health Organization, P.C.

 

Executed on Date: L0 TI '2 ll 2.0/07

Case Document 2130 Filed 06/28/19 - Page 57 of-60

DECLARATION

I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to Summit Medical

Associates, PC. are true and correct to the best of my knowledge and belief.

 

Elizabeth Hillston
Director
Summit Medical Associates

Executed on Date: C, I at I 201 

 

Case Document 2130 Filed 06/28/19 Page 58 of 60

DECLARATION

 

I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to Lisa Haddad,

M.D., M.S., M.P.H. are true and correct to the best of my knowledge and belief.

Lisa Haddad, M.D., M.S., M.P.H.
Executed on Date: (a 

 

 

 

 

 

Case 1:19-mi-99999-UNA Document 2130 Filed 06/28/19 Page 59 of 60

DECLARATION
I declare under penalty of perjury under the laws of the United States of
America that the statements contained in the Complaint related to Dr. Eva Lathrop
are true and correct to the best of my knowledge and belief.

____________________
Eva Lathrop, M.D.

Executed on Date: _June 17, 2019__________________

 Case 1:19-mi-99999-UNA Document 2130 Filed 06/28/19 Page 60 of 60

CERTIFICATE OF SERVICE
I hereby certify that on June 28, 2019, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system. The Complaint will be served
on the above-named Defendants.
Date: June 28, 2019
s/ Sean J. Young__________
Sean J. Young (Ga. Bar No. 790399)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC.
P.O. Box 77208
Atlanta, GA 30357
770-303-8111 (phone)
770-303-0060 (fax)
syoung@acluga.org

38