Abrams distorts new Georgia abortion law; Kemp has not moved to investigate women for miscarriages

In the weeks since the Supreme Court overturned Roe v. Wade, Democratic candidates have focused their ads on abortion. In the race for Georgia governor, Democratic challenger Stacey Abrams adopted the tactic. 

With an ad on Facebook and Instagram, she made this claim about the state’s Republican incumbent:

"Brian Kemp wants to investigate and punish women for having miscarriages."

Abrams made similar claims in two TV ads.

The six-week abortion law Kemp signed, which took effect July 20 but is being challenged in court, says miscarriage is legal. 

Georgia’s law does not explicitly say women can’t be prosecuted. So, some legal experts say the law gives police discretion on investigating whether a woman had a miscarriage or an illegal abortion.

"There are other states where it really clearly says you cannot punish the person who had the abortion, period, and Georgia’s law is not clear in that way," said Mary Ziegler, a law professor at University of California, Davis and an abortion law expert.

Therefore, women in Georgia could be investigated over a miscarriage, she said.

Kemp won his first term as governor in 2018 by defeating Abrams, a former Georgia state lawmaker. Campaign watchers rate their Nov. 8 matchup as leaning Republican. 

Abrams’ attack is made in the headline that appears at the top of the ad, which was placed by One Georgia, her leadership committee. Below the headline is a video with sound bites, including: "Governor Brian Kemp signed the most extreme abortion law in the nation" and "criminal investigations into miscarriages."

The video alludes to Georgia’s "heartbeat" law, which bans most abortions once a "detectable human heartbeat" exists at about six weeks of pregnancy. The law defines a miscarriage as a "spontaneous abortion" and says that removing "a dead unborn child caused by spontaneous abortion" is legal.

When Kemp signed the law in May 2019, we examined claims that women would be prosecuted. We found that the law neither spells out what happens to a woman who has an illegal abortion, nor directly says miscarriages can be investigated.

The law was prevented from going into effect until after Roe’s reversal removed the constitutional right to an abortion. A federal appeals court ruling July 20 allowed the law to go into effect immediately.

To support the claim, Abrams’ campaign cited news stories that raised questions about whether Georgia women who had miscarriages could be investigated. The stories centered on the difficulty of determining whether a woman pregnant for about six weeks miscarried naturally or had an abortion.  

The Abrams campaign did not cite any instances of Kemp saying he wanted women to be investigated for miscarriages.

Georgia State University law professor Anthony Michael Kreis said medically differentiating between miscarriage that occurs around six weeks and an abortion can be difficult. So, Kreis said, "there is this open question about whether miscarriages will be liable to investigation, and the answer is yes."

However, spokespersons for Kemp’s campaign and the governor’s office maintained that under Georgia’s law, a woman cannot be prosecuted for getting an abortion or for having a miscarriage. 

"The governor has addressed questions about the bill multiple times. He has never indicated support for investigating women who experience a miscarriage," said Kemp campaign spokesperson Tate Mitchell.

In a search of the Nexis news database, we did not find that Kemp made any statements regarding the law, miscarriages and investigations or punishment of women.

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A woman holds a sign that says, “I want my daughter to have the right to abortion that I didn’t have.”

Joshua Edmonds, who helped draft the law when he was executive director of the Georgia Life Alliance, an anti-abortion group, said he believes the law was written to protect women from being prosecuted. "We agreed this precludes women from investigation or prosecution," he said.

But Kreis said the law’s "heartbeat" provision could expose a woman to a police investigation. He said someone in a dispute with a woman could report her ended pregnancy as an illegal abortion to police, who might feel compelled to investigate. Such a case theoretically could result in a district attorney charging that woman with murder, given that the law essentially defines life as beginning when a heartbeat is detected, he said. 

"It all comes down to how aggressive does any particular law enforcement agency want to be, how aggressive does any county DA want to be," Kreis said.

On Aug. 8, a Georgia state judge heard arguments in a lawsuit challenging the law and said he would issue a ruling soon. The hearing focused on whether the judge has the power to block the law temporarily and whether the law was invalid because it violated the U.S. Constitution and U.S. Supreme Court precedent when it was enacted, The Associated Press reported.

Abrams said Kemp "wants to investigate and punish women for having miscarriages."

Kemp has not said he wants women investigated or punished for pregnancies that end in miscarriage. A six-week abortion law Kemp signed said miscarriage is legal.

The law does not prohibit investigating women who get an illegal abortion. Therefore some legal experts believe women could be investigated if there are questions about whether they miscarried or had an illegal abortion.

But that’s a separate question from what Abrams claimed. Her statement about Kemp is not accurate, so we rate it False.

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