The Abortion Series: GA Rep. Bobby Franklin Wants to Ban Abortion, Investigate Miscarriages
That’s right ladies. Georgia State Representative Bobby Franklin (R) is sponsoring House Bill 1 (H.B. 1) which would criminalize abortion as murder–no exceptions for rape or incest–and would require “suspicious” miscarriages to be investigated to ensure that any “spontaneous fetal death” (miscarriage) occurs naturally with “no human involvement in the causation of such event”.
This bill is insane on a number of levels. It is long-winded and scrapes up some bizarre justifications for making abortion illegal in the state of Georgia. Before diving into the bill, let me first tell you that Rep. Bobby Franklin has the moral and legal authority to author such a bill because he holds a degree in Biblical Studies and Business Administration from the college of holier-than-thou.
H.B. 1 begins (Article 5 for those of reading along) by proclaiming that “the state of Georgia has the duty to protect all innocent life from the moment of conception until natural death. We know life begins at conception… A fetus is a person for all purposes under the laws of this state from the moment of conception.” And because the Georgia state constitution states that “protection to the person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied equal protection of the laws.” [emphasis mine] Since Georgia has already established for itself that life begins at conception and that a fetus–from the moment of conception–is a person, the bill argues that allowing abortions to be performed would be in violation of the equal protection clause of the 14th Amendment to the U.S. Constitution. Rep. Franklin then has the chutzpah to cite a portion of Justice Blackmun’s majority opinion in Roe v. Wade as legal and moral justification for banning abortions:
When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
Justice Blackmun’s statement was taken completely out of context, because if one actually reads the whole of the majority opinion, it becomes apparent that Justice Blackmun wrote that statement in order to illustrate that at that point–and still to this day–the issue of when a fetus transitions from a collection of dividing cells into a baby is still one of contention. But, lucky for us, the infinite wisdom of the Georgia General Assembly has now resolved this complex moral and medical issue because “the General Assembly knows the answer to that difficult question, and that answer is life begins at the moment of conception.” Justice Blackmun stated that it is not for the Supreme Court to determine when life begins, or when a fetus is no longer just a fetus but a child, because the Court is not composed of medical, theological, or philosophical experts. It is not for the Court to make such a determination, but it is the Court’s business to rule on the legality of attempts to control and regulate legitimate medical procedures.
The text of H.B. 1 goes on to assert that the Supreme Court’s ruling in Roe v. Wade does not apply to the state of Georgia because Article 1 of the U.S. Constitution only grants Congress the power to legislate on the crimes of [as quoted H.B. 1] “(1) counterfeiting, (2) piracy, (3) felonies on the high seas, (4) offenses against the law of nations, and (5) treason”. The bill goes on to make the absurd and erroneous assertion that because murder is not “counterfeiting, piracy, felony on the high seas, an offense against the law of nations, or treason” the Federal Government and Supreme Court have no jurisdiction over the crime of murder. Because the Federal government’s power to enforce the Federal Penal Code is now null and void, Georgia has “exclusive jurisdiction over the definition and punishment of murder under Amendment X of the Constitution of the United States”. Rep. Franklin must not have taken Constitutional Law at Covenant College, because if he had, he would know that Article 1 Section 8 of the Constitution states that Congress has the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States…” This is known as the Elastic Clause and was written into the Constitution in order to authorize the creation of Federal Penal law and legal codes, because the only crimes in which Congress is explicitly authorized to punish are not the only crimes that can and do occur:
Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define, and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded…Illustrative of the offenses which have been punished under this power are…conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States [like life, liberty, etc.]
H.B. 1 continues on to assert that the ruling in Roe v. Wade does not apply to the state of Georgia because the
Supreme Court had no jurisdiction to hear or decide the case of Roe v. Wade…the United States Supreme Court lacked the authority to pass, or order all states to strike or refuse to enforce, a law that is outside of its subject matter or federal jurisdiction…Even if the United States Supreme Court had jurisdiction, its authority is limited to the case or controversy before it, and its opinion extends no further than between the parties to the case or controversy…As the United States Constitution confers to no federal branch either the authority over or the definition or prosecution of murder, or the power to nullify the laws of a state that do the same, Roe v. Wade is ‘no law,’ is a nullity, and carries no legal effect in Georgia…
Essentially, the argument made above is that because murder–specifically the murder of “prenatal life”–is not specifically enumerated as an crime over which Congress has jurisdiction, the Supreme Court is not authorized to hear or rule upon the issue of abortion (and murder in general, apparently). Further, because the state of Georgia was not a party to the case of Roe v. Wade, it is “not bound by a decision in which it did not have right of participation.” Apparently the state of Georgia and its laws are above Federal jurisdiction or Federal judicial scrutiny, and the rulings of the Supreme Court and Federal law do not apply to it unless concerning enumerated crimes made explicit in Article 1 of the Constitution. This, to be frank, is utter bullshit. If this bill were to pass and survive judicial appeal (which is unlikely) it would set a precedent of exempting Georgia–and other states–from the vast majority of the United States Federal Penal Code.
H.B. 1 also goes into detail as to what defines “prenatal murder” as “the intentional removal of a fetus from a woman with an intention other than to produce a live birth or to remove a dead fetus”. If the life of the mother and/or child are at risk, physicians must make an equal effort to save the lives of both, and if the fetus then does not survive, the physician is off the hook for murder. There are no exceptions in this bill for rape, incest, or certain medical decisions because “the act of prenatal murder is contrary to the health and well-being of the citizens of this state and to the state itself and is illegal in this state in all instances.” I think most people agree it is abhorrent to force a rape or incest victim to carry a pregnancy which is the product of the crimes committed against her, but this bill would only further punish victims by providing no recourse for those who do not want to carry the pregnancy resulting from their rape. The also doesn’t provide any exceptions for the difficult medical decisions women sometimes have to make. An example of these “other medical decisions” is when a pregnant woman is diagnosed with cancer and must undergo chemotherapy or other procedures which would not be compatible with pregnancy and seriously endanger the health of both the fetus and mother. Or ectopic pregnancy, in which the fetus migrates from the womb to the cervix, fallopian tubes, ovaries, or stomach region, and often requires that an abortion be performed.
Miscarriages are only legal if there is “no human involvement whatsoever in the causation of such event.” In the event of a miscarriage:
A report of spontaneous fetal death [miscarriage] which occurs in this state shall be filed with the local registrar of the county in which the delivery occurred within 72 hours after such delivery…unless the place of fetal death is unknown, in which case a fetal death certificate shall be filed in the county in which the dead fetus was found within 72 hours after such occurrence…When a spontaneous fetal death required to be reported by this Code occurs without medical attendance at or immediately after the delivery or when inquiry is required by…the ‘Georgia Death Investigation Act,’ the proper investigating official shall investigate the cause of fetal death and shall prepare and file the report within 30 days…
Basically, this would require miscarriages to be investigated as suspicious deaths. This is ridiculous because many miscarriages occur so early in a pregnancy, women would not even know they were pregnant. In effect, I believe this provision of the bill was written in order to prosecute women who attempt to abort their pregnancies illegally (since safe abortions performed by qualified physicians would be illegal, and women seek abortion regardless of the legality of the procedure).
This bill, in addition to the efforts of Congressional Republicans to de-fund Planned Parenthood and two bills out of Nebraska and South Dakota that would make it legal to murder abortion providers–as it would be “justifiable homicide” in the defense of prenatal life–signal an organized, all-out attack on reproductive rights, public health, and women’s rights by the Republican Party, no doubt egged on by its increasingly powerful reactionary religious base. We can’t just let legislation like this slip by without public review, and thanks to national coverage and public outrage, the South Dakota bill to make murdering abortion providers “justifiable homicide” was shelved. Let’s hope the same thing happens to H.B. 1.