Post-Viability Abortion Restriction

Georgia 's post-viability restriction states that no abortion may be provided after the second trimester unless three physicians certify that it is necessary to preserve the woman's life or health.  If the fetus is capable of meaningful or sustained life, medical aid must be rendered.  Ga. Code Ann. § 16-12-141(c) (Enacted 1973; Last Amended 2005).

The U.S. Supreme Court previously invalidated an earlier version of Georgia's three-physician requirement, which then applied throughout pregnancy, on the grounds that "the requirement" has no rational connection with a patient's needs and unduly infringes on the physician's right to practice."  Doe v. Bolton, 410 U.S. 179, 200 (1973).

In addition, a court has approved a consent order that limits enforcement of Georgia's ban on some procedures, which lacks a health exception and could have outlawed abortion as early as 12 weeks, to post-viability abortion and adds exceptions to protect the woman's life and health. Midtown Hosp. v. Miller, 1:97-CV-1786-JOF (N.D. Ga. Sept. 3, 1998).  As written, Georgia's ban is unconstitutional and unenforceable.  The ban makes the provision of any abortion procedure that falls within a broad definition a felony unless necessary to preserve the life of a woman endangered by a physical disorder, physical illness, or physical injury, including a life-endangering condition caused by or arising from the pregnancy itself, and no other medical procedure will suffice.  Ga. Cod Ann. § 16-12-144 (Enacted 1997).

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman's life and health.  NARAL Pro-Choice America opposes § 16-12-141 because it is unconstitutional to the extent that it prohibits pre-viability procedures by defining viability at the third trimester of pregnancy.  A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside a woman's body.  Roe v. Wade, 410 U.S. 113, 163 (1973).  Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).