By Ferdinand Buckley

During the 1967 Session of the Georgia General Assembly, the House passed House Bill 281, which would repeal Chapter 26-11 of the Georgia Code dealing with criminal abortion, feticide and infanticide and considerably broaden the area of permissible abortions. It is anticipated that the Georgia Senate will act upon House Bill 281 early in the 1968 Session of the Georgia Assembly. House Bill 281 raises mixed questions of theology, medicine and law. This article will deal only with the legal implications of the Bill.

Chapter 26-11 of the Georgia Code, as it now exists, makes it a crime to administer to a pregnant woman any medication or treatment with intent to destroy the unborn child unless such medication or treatment is necessary to preserve the life of the mother or the medication or treatment is administered upon the advice of two physicians that it is necessary for the preservation of the life of the mother.

It is implicit in the present Georgia law dealing with abortion, feticide and infanticide that its primary purpose is to protect the life of the unborn child and the interest which the State has in the life of the unborn child. There are numerous other instances in Georgia law of the recognition of the right of the unborn child to be secure in his person and property. This article will not attempt to catalogue all such laws, but mentions as illustrative examples Section 85-706 of the Georgia Code dealing with creation of estates for persons not in being and Georgia Code Section 113-903 dealing with inheritance by posthumous children.

In the case of Tucker v. Carmichael & Sons, Inc., (1951), 208 Ga. 201, the Georgia Supreme Court quoted with approval from Book 1, page 130 of Blackstone’s Commentaries on the Laws of England as follows:

“The right of personal security consists in a person’s legal and uninterrupted enjoyment of life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of the law as soon as an infant is able to stir in the mother’s womb...An infant in ventre as mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.”

The Court went on to hold that a child that receives prenatal injuries by reason of negligence of another is entitled to recover damages against the person who inflicted the prenatal injuries. It should be noted that in the Tucker case the Court was dealing with a child who was “quick” at the time of the injury.

In the case of Hornbuckle v. Plantation Pipeline Co., (1956), 212 Ga. 504, the Georgia Supreme Court went further and held that “Where a child is born after a tortuous injury sustained at any period after conception, he has a cause of action.” One of the justices dissented and another specially concurred, but the Hornbuckle case represents the present law of Georgia.

House Bill 281 purports to repeal Chapter 26-11 of the present Georgia Code, to prescribe certain general prohibitions against abortion, feticide and infanticide, and to prescribe certain “exceptions” to those general prohibitions. These exceptions would permit abortions in three very broad and ill-defined sets of circumstances, to-wit:

(1) Where three examining physicians rendered opinions that a continuance of the pregnancy would endanger the life of the pregnant woman.

(2) Where three examining physicians rendered opinions that a continuance of the pregnancy would “probably” seriously impair the physical or mental health of the pregnant woman.

(3) Where three examining physicians rendered opinions that a fetus “might reasonably” be expected to be born with a “grave and irremediable mental or physical defect.”

The first exception permits an abortion for the purpose of preserving the life of the pregnant woman, but creates certain administrative and medical safeguards not contained in the present law. To this limited extent, it would seem that House Bill 281 represents an improvement over existing law. However, the second two exceptions represent two marked departures from existing law.

House Bill 281 provides that the exceptions provided in Section 26-1106 of the Bill shall not apply in circumstances where the pregnant woman is sixteen years of age or older, and objects to the abortion. The Bill makes absolutely no provision of the rights of a pregnant minor under the age of sixteen years or for the protection of the rights of the unborn child. Even provisions for the protection of the rights of a pregnant minor sixteen years or older are altogether inadequate in legal contemplation. House Bill 281 provides no semblance of due process of law for the protection of rights of either the pregnant minor or the unborn child.

It is highly doubtful that the mere failure of the over sixteen prospective mother to object to the abortion is relevant even if we consider her rights alone. What legal opportunity does House Bill 281 give her to object? How is her failure to object legally recorded? The under sixteen prospective minor is given no legal right at all to object to the destruction of her unborn child.

Whatever might be said of the relevancy of the failure of the over sixteen prospective mother to object insofar as her rights are involved, certainly neither her consent nor her failure to object can be relevant in dealing with the rights of the unborn child. In the case of Fallaw v. Hobbs (1966), 113 Ga. App. 181, the Georgia Court of Appeals followed the Georgia Supreme Court’s rulings in the Tucker and Hornbuckle cases, referred to above, and went on to hold that negligence of the mother of an unborn child could not be imputed to the unborn child so as to affect the right of the unborn child to recover damages for negligently inflicted injuries.

If negligence of the mother of an unborn child cannot be imputed to the unborn child so as to deprive it of its right to recover damages for injuries, how much less relevant is the consent of the mother where the very life of the unborn child is at stake.

Georgia law has long contained many provisions designed to protect the property and contractual rights of minors and other incompetent persons, including unborn persons. It is generally required in any legal proceedings affecting the rights of such persons that a guardian be appointed to represent the interests of such persons.

House Bill 281 contemplates that an abortion shall be performed without any legal proceedings having been taken to protect the rights of either the pregnant minor or the unborn child. This would seem to violate the “due Process” clauses of the Federal and State Constitutions.

In the recently decided case, Application of Gault, (1967), 87 Sup. Ct. 1428, the United States Supreme Court was dealing with the applicability of the Fourteenth Amendment and Bill of Rights to a fifteen-year-old boy who had been sentenced to confinement by an Arizona Juvenile Court. The Court said at page 1439, “Due process of law is the primary and indispensable foundations of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.” At page 1436, the Court quoted with approval from Gallegos v. State of Colorado (1962), 82 Sup. Ct. 1209, as follows: “Neither man nor child can be allowed to stand condemned by methods which flaunt constitutional requirements of due process of law.” The Court went on to say on page 1436 that “Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”

The Court held that due process requires the following in proceedings involving juveniles:

(1) That the child and his parents or guardians be given written notice of the charges to be considered at the hearing and that such written notice be given at the earliest practical time in order to permit preparation for the hearing.

(2) That the child requires the guidance of counsel at every step in the proceedings.

(3) That the child has a right to confront witnesses and cross-examine them.

The principles enounced in the Gault case are directly applicable to the protection of the rights of the unborn child. Obviously, the unborn child cannot be notified of a hearing and cannot appear at any such hearing, but due process of law demands the following: (1) That some form of judicial hearing be held to determine whether or not the unborn child may legally be deprived of his life; (2) That a guardian ad litem be appointed by the court to represent the unborn child; (3) That the guardian ad litem be given adequate notice of the hearing; and (4) That such guardian ad litem should have the right, through counsel, to confront and cross-examine the physicians and any other persons who recommended and/or seek the abortion.

Due process of law requires that similar protection must be afforded to the pregnant mother who is a minor, and therefore, should be deemed to be legally incompetent to give her consent to an abortion.

In view of the overwhelmingly male population of the Georgia House, it is somewhat surprising, to say the least, that House Bill 281 makes no provision at all for the protection of rights of the father of the unborn child. Certainly, there must be some fathers who might object to the destruction of their unborn children. Certainly, it would not be immodest to suggest that such fathers come within the protection of the State and Federal Constitutions.

Entirely apart from the procedural due process questions discussed in the Gault case, House Bill 281 violates the substantive rights of the fetus (and in some instances the mother) by depriving the fetus of life as such in this day when the concept of capital punishment is so seriously questioned, it is sadly ironical to encounter a Bill which would permit the destruction of a child because three doctors thought that he “might reasonably” be expected to be born with a “grave and irremediable mental or physical defect.”

It is more than a little anomalous that the same criminal code which permits the Governor to defer the execution of one convicted of capital crime if he is insane would permit three doctors to destroy an unborn child whom they suspect might be born with a mental or physical defect if allowed to live. Of course, no definition is given by the Bill of the gravity of the mental or physical defect which would constitute a cause for killing the unborn child, nor does the Bill establish any standards of probability which must be found to exist with reference to any such mental or physical defect. Under existing legal standards, an accused person may not be convicted of crime unless it is proved beyond a “reasonable doubt” that he has committed such crime.

The “reasonable doubt” standard has been held to require a higher degree of proof than the “preponderance of the evidence” standard prevailing in civil trials. If a “grave and irremediable mental or physical defect” is legal cause for destruction of an unborn child, it would seem desirable that a determination as to whether or not the child should be destroyed should be postponed until after birth in order that the nature and extent of the mental or physical defect might be accurately ascertained. (Shades of Johnathan Swift)

Certainly any possible embarrassment to the operating physicians, who might be squeamish about executing a child after birth, would be more than outweighed by the advantages to the child if it were allowed to live. Compare the disadvantage to the unborn child who is killed under House Bill 281, but who is revealed by autopsy not to have had a “grave and irremediable mental or physical defect.”

Assuming, without admitting, that the elimination of grave and irremediable mental or physical defects by abortion is a valid subject of legislation, then the General Assembly is required by Federal and State Constitutions to define with great particularity the mental or physical defects which it proposes to eliminate. This would go a long way toward avoiding the possibility that any person, doctor or otherwise, might intrude his own peculiar prejudices into the determination as to what mental or physical defects cannot be tolerated by society.

One of the reasons urged for the adoption of House Bill 281 is that doctors require such legislation in order to protect them against unjust suits. This argument is fallacious in at least two aspects, to-wit: (1) If the purpose of the legislation is to protect doctors against unjust suits, then the General Assembly should address itself to that specific subject; and (2) The proposed new law will actually greatly enlarge the doctors’ exposure to suits, because they will be sued for failure to perform certain abortions and for performing other abortions without any semblance of legal protection of the rights of unborn children and minor parents.

Another argument advanced in support of legislations such as House Bill 281 is that abortion is analogous to contraception, and the woman, in the interest of her bodily integrity, should be free to avail herself of this additional means of preventing the birth of an unwanted child. Whatever else might be said of this line of reasoning, it ignores the principle of the Hornbuckle case, supra, that from conception the human fetus has an integrity of its own which is legally protected. This argument also overlooks the possibilities of law which would permit the summary termination of property and contractual rights merely because a prospective mother does not want the unborn child.

Still another alleged purpose of the proposed legislation is the protection of the mental or physical health of the prospective mother. Of course, the present law permits an abortion where necessary to protect the life of the mother, so this line of reasoning obviously contemplates permission of abortions for the improvement of the mental or physical health of the prospective mother where such action is not necessary to protect the life of the prospective mother.

If this be a valid legislative goal, then the General Assembly should specify the degree of mental or physical improvement of the prospective mother which would justify destruction of the unborn child and should prescribe some form of legal proceedings for weighing the life of one human against the health of another. Otherwise, the reluctant prospective mother will be permitted to shop for the doctor who believes anything which upsets a person may adversely affect his mental or physical health.

We also hear it said that House Bill 281 is needed to protect the victim of rape. Leaving aside the medical question as to whether or not an abortion is necessary for this purpose, we confront the legal necessity that some judicial determination must be made as to the circumstances of conception and the necessity of abortion as a remedy.

Finally, we deal with the seldom heard but no less obvious argument that a prospective mother should be free to reject the deformed or illegitimate child. Present laws afford the reluctant mother various means of accomplishing this goal. If they be somewhat more inconvenient or embarrassing than abortion, then let us balance such inconvenience or embarrassment against the legal necessity of protecting the unborn child.

In conclusion, let us recognize the distinction which must be drawn between legal and moral arguments relative to abortion. We might all agree that a particular act is morally wrong. It would not follow necessarily that such act must be defined to be criminal. In considering House Bill 281 and any similar legislation we must ask ourselves these questions:

(1) What forms of abortion are morally permissible? (2) What forms of abortion are medically necessary? (3) What forms of abortion should be declared to be criminal? (4) Within this framework what form of amendment to existing law can we support? (5) Within this frame of reference what form of legislation shall we find least objectionable? (6) Who should be permitted to initiate steps to obtain an abortion? (7) Who must be afforded an opportunity to oppose a proposed abortion? (8) What minimum legal proceedings must be had in order to satisfy the requirements of due process?

The critics of House Bill 281 cannot fulfill their responsibilities by merely criticizing the Bill. They must offer constructive suggestions to the legislators in an effort to help them arrive at a legal and practical solution to the abortion problem.