11 LC 21
0916
House
Bill 1
By:
Representative Franklin of the
43rd
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend the Official Code of Georgia Annotated so as to provide that prenatal
murder shall be unlawful in all events and to remove numerous references to such
procedures; to amend Title 16, relating to crimes and offenses, so as to make
certain findings of fact; to define certain terms; to provide that any prenatal
murder shall be unlawful; to provide a penalty; to repeal certain exceptions to
certain offenses; to provide for severability; to provide an effective date; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
16 of the Official Code of Georgia Annotated, relating to crimes and offenses,
is amended by striking Article 5, relating to abortion, in its entirety and
inserting in lieu thereof the following:
"ARTICLE
5
16-12-140.
(a)
The State of Georgia has the duty to protect all innocent life from the moment
of conception until natural death. We know that life begins at conception.
After nearly four decades of legal human prenatal murder, it is now abundantly
clear that the practice has negatively impacted the people of this state in many
ways, including economic, health, physical, psychological, emotional, and
medical well-being. These, too, are areas of legitimate concern and duty of
this state. The General Assembly therefore makes the following findings of
fact:
(1)
A fetus is a person for all purposes under the laws of this state from the
moment of conception;
(2)
The Georgia Constitution, at Article I, Section I, Paragraph II, provides:
'Protection to person and property is the paramount duty of government and shall
be impartial and complete. No person shall be denied the equal protection of
the laws.' Because a fetus is a person, constitutional protection attaches at
the moment of conception. It is therefore the duty of the General Assembly to
protect the innocent life that is being taken;
(3)
Justice Blackmun, writing for the majority in
Roe
v. Wade, 410
U.S. 113 (1973), wrote: '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 [to the question of when life
begins].'
(4)
The General Assembly knows the answer to that difficult question, and that
answer is life begins at the moment of conception;
(5)
The Supreme Court's inability to determine what is human life cannot
legitimately serve to prohibit Georgia from fulfilling its constitutional
mandate to protect the lives of its citizens by prosecuting crimes against said
person;
(6)
The United States Congress has reserved to itself 'all legislative powers
herein
vested'
according to Article I, Section I of the Constitution of the United
States;
(7)
'Herein vested' to the United States Congress applies to only five crimes: (1)
counterfeiting, (2) piracy, (3) felonies on the high seas, (4) offenses against
the law of nations, and (5) treason; according to Article I, Section VIII and
Article III, Section III of the Constitution of the United States;
(8)
Murder is not counterfeiting, piracy, felony on the high seas, an offense
against the law of nations, or treason;
(9)
Georgia has, therefore, reserved to itself exclusive jurisdiction over the
definition and punishment of murder under Amendment X of the Constitution of the
United States;
(10)
The United States judiciary only has authority to hear cases or controversies
'arising under this Constitution' and then only if 'affecting ambassadors, other
public ministers and consuls; to all cases of admiralty and maritime
jurisdiction; to controversies to which the United States shall be a Party; to
controversies between two or more states; between a state and citizens of
another state; between citizens of different states; between citizens of the
same state claiming lands under grants of different states, and between a state,
or the citizens thereof, and foreign states, citizens or subjects';
(11)
The definition and prosecution of murder within Georgia to protect its own
prenatal citizens affects neither an ambassador nor other public minister or
consul; is not a case of admiralty and maritime jurisdiction; is not a
controversy to which the United States shall be a party; is not a controversy
between two or more states, nor between the state of Georgia and the citizens of
another state; is not a controversy between a citizen of Georgia and a citizen
of a different state; is not related to citizens of Georgia claiming lands under
grants of different states; and is not a case between Georgia or its citizens
and another state and its citizens;
(12)
The United States Supreme Court had no jurisdiction to hear or decide the case
of
Roe
v. Wade or any
other case pertaining to a state's punishment of the crime of prenatal
murder;
(13)
As it had no jurisdiction to hear the case, certainly 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;
(14)
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;
(15)
It is a foundational principle of our constitutional republic, and 'a
proposition too plain to be contested, that the Constitution controls any
legislative act repugnant to it'; 'a law repugnant to the Constitution is void'
and even 'the courts ... are bound by that instrument';
Marbury
v. Madison, 1
U.S. 137, 177 and 180 (1803);
(16)
As 'an act of the legislature, repugnant to the Constitution, is void,' does not
'bind the courts, and oblige them to give it effect,'
Marbury
at 177, an act of the United States Supreme Court, repugnant to the
Constitution, is void and does not bind the state or oblige it to give it
effect;
(17)
Georgia hereby unequivocally expresses its firm resolution to maintain and
defend the Constitution of the United States against every aggression, either
foreign or domestic, and most solemnly declares a warm attachment to the Union
of the states and seeks its preservation and continuation;
(18)
It is 'for this end it is their duty to watch over and oppose every infraction
of those principles which constitute the only basis of that Union';
Virginia
Resolutions of
1798-99;
(19)
However, denying to a state the right to define and punish a crime not specified
in the United States Constitution is a
per
se legislative
act;
(20)
The nullification of a state's properly promulgated laws is specifically
delineated as an offense committed by King George III against the states, for
which separation became necessary;
The
Unanimous Declaration of the thirteen united States of
America;
(21)
Compliance with, and continuation of, a fiat determination of the Supreme Court
from nearly 40 years ago will cause the basis of this Union, and eventually the
Union itself, to fall;
(22)
Georgia was not a party to the suit in
Roe
v. Wade, and
is not bound by a decision in which it did not have right of
participation;
(23)
Georgia is not restricted in its duty to its citizens due to the failure of the
State of Texas to properly plead 'lack of subject matter
jurisdiction';
(24)
As the United States Constitution confers to no federal branch either the
authority over 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;
(25)
The act of prenatal murder is murder and conspiracy to commit murder
per
se;
(26)
The act of prenatal murder has caused a significant reduction in the number of
citizens in this state who would serve as workers, entrepreneurs, teachers,
employees, and employers who would have significantly contributed to the
prosperity and continuation of this state; and
(27)
The failure to prosecute a violation of this Code section is a violation of the
obligation of this state to provide all of its citizens with an equal protection
of the laws.
(b)
As used in this Code section, the term:
(1)
'Fetus' means a person at any point of development from and including the moment
of conception through the moment of birth. Such term includes all medical or
popular designations of an unborn child from the moment of conception such as
conceptus, zygote, embryo, homunculus, and similar terms.
(2)
'Prenatal murder' means 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;
provided, however, that if a physician makes a medically justified effort to
save the lives of both the mother and the fetus and the fetus does not survive,
such action shall not be prenatal murder. Such term does not include a
naturally occurring expulsion of a fetus known medically as a 'spontaneous
abortion' and popularly as a 'miscarriage' so long as there is no human
involvement whatsoever in the causation of such event.
(c)
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.
(d)
Any person committing prenatal murder in this state shall be guilty of a felony
and, upon conviction, shall be punished as provided in subsection (d) of Code
Section 16-5-1. The license of any physician indicted for an alleged violation
of this Code section shall be suspended until resolution of the matter. The
license of any physician convicted of a violation of this Code section shall be
permanently revoked. The provisions of this Code section shall be in addition
to any other provisions relating to the killing of a fetus or any other
person."
SECTION
2.1.
Said
title is further amended in subsection (h) of Code Section 16-5-20, relating to
simple assault, by striking current paragraph (1) and by redesignating current
paragraphs (2) and (3) as paragraphs (1) and (2), respectively.
SECTION
2.2.
Said
title is further amended in subsection (d) of Code Section 16-5-28, relating to
assault on an unborn child, by striking current paragraph (1) and by
redesignating current paragraphs (2) and (3) as paragraphs (1) and (2),
respectively.
SECTION
2.3.
Said
title is further amended in subsection (d) of Code Section 16-5-29, relating to
battery on an unborn child, by striking current paragraph (1) and by
redesignating current paragraphs (2) and (3) as paragraphs (1) and (2),
respectively.
SECTION
2.4.
Said
title is further amended in subsection (f) of Code Section 16-5-80, relating to
feticide, voluntary manslaughter of an unborn child, and penalties, by striking
current paragraph (1) and by redesignating current paragraphs (2) and (3) as
paragraphs (1) and (2), respectively.
SECTION
2.5.
Chapter
11 of Title 15 of the Official Code of Georgia Annotated, relating to juvenile
proceedings, is amended in Code Section 15-11-28, relating to jurisdiction of
the juvenile courts, by adding "or" at the end of subparagraph (a)(2)(C), by
striking current subparagraph (a)(2)(D), and by redesignating current
subparagraph (a)(2)(E) as subparagraph (a)(2)(D).
SECTION
2.6.
Said
chapter is further amended by repealing in its entirety Article 3, the "Parental
Notification Act," and designating said article as reserved.
SECTION
2.7.
Code
Section 20-2-773 of the Official Code of Georgia Annotated, relating to
restrictions on student health services and utilization of state funds, is
amended by revising subsection (a) as follows:
"(a)
No facility operated on public school property or operated by a public school
district and no employee of any such facility acting within the scope of such
employee's employment
shall
provide any of the following health services to public school
students:
distribute
contraceptives.
(1)
Distribution of contraceptives;
(2)
Performance of abortions;
(3)
Referrals for abortion; or
(4)
Dispensing
abortifacients."
SECTION
2.8.
Title
31 of the Official Code of Georgia Annotated, relating to health, is amended in
Code Section 31-2-1, relating to the creation and powers of the Department of
Community Health, by adding "and" at the end of paragraph (16), by striking
current paragraph (17), and by redesignating current paragraph (18) as paragraph
(17).
SECTION
2.9.
Said
title is further amended in paragraph (4) of Code Section 31-7-1, relating to
definitions, by striking current subparagraph (B) and by redesignating current
subparagraphs (C) through (G) as subparagraphs (B) through (F),
respectively.
SECTION
2.10.
Said
title is further amended by revising subsection (a) of Code Section 31-7-9,
relating to reports by physicians and other personnel of nonaccidental injuries
to patients and immunity from liability, as follows:
"(a)
As used in this Code section, the term 'medical facility' includes, without
being limited to, an ambulatory surgical treatment center defined in
subparagraph
(D)
(C)
of paragraph (1) of Code Section 31-7-1."
SECTION
2.11.
Said
title is further amended in Code Section 31-9-5, relating to the applicability
of the "Georgia Medical Consent Law" to abortion and sterilization procedures,
by striking the words "abortion and" and "procedures".
SECTION
2.12.
Said
title is further amended by repealing in its entirety Chapter 9A, the "Woman's
Right to Know Act."
SECTION
2.13.
Said
title is further amended by revising Code Section 31-10-1, relating to
definitions relative to vital records, by deleting the words "product of human
conception" and replacing them with "prenatal human person" in paragraphs (4),
(9), and (15); by deleting the words "induced termination of pregnancy" and
replacing them with "prenatal murder" in paragraphs (7) and (20); and by
deleting the words "an induced termination of pregnancy" and replacing them with
"a prenatal murder" in paragraph (15).
SECTION
2.14.
Said
title is further amended by revising subsection (a) of Code Section 31-10-18,
relating to registration of spontaneous fetal deaths, as follows:
"(a)
A report of spontaneous fetal death for each spontaneous fetal death 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 in accordance
with this Code section 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.
All induced
terminations of pregnancy shall be reported in the manner prescribed in Code
Section 31-10-19. Preparation and filing
of reports of spontaneous fetal death shall be as follows:
(1)
When a dead fetus is delivered in an institution, the person in charge of the
institution or that person's designated representative shall prepare and file
the report;
(2)
When a dead fetus is delivered outside an institution, the physician in
attendance at or immediately after delivery shall prepare and file the
report;
(3)
When a spontaneous fetal death required to be reported by this Code section
occurs without medical attendance at or immediately after the delivery or when
inquiry is required by Article 2 of Chapter 16 of Title 45, 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;
and
(4)
When a spontaneous fetal death occurs in a moving conveyance and the fetus is
first removed from the conveyance in this state or when a dead fetus is found in
this state and the place of fetal death is unknown, the fetal death shall be
reported in this state. The place where the fetus was first removed from the
conveyance or the dead fetus was found shall be considered the place of fetal
death."
SECTION
2.15.
Said
title is further amended by repealing and reserving Code Section 31-10-19,
relating to reporting of termination of pregnancy.
SECTION
2.16.
Said
title is further amended by revising subsection (a) of Code Section 31-10-28,
relating to institutions to keep vital records, as follows:
"(a)
Every person in charge of an institution shall keep a record of personal data
concerning each person admitted or confined to such institution. This record
shall include such information as required for the certificates of birth and
death and the reports of spontaneous fetal death
and induced
termination of pregnancy required by this
chapter. The record shall be made at the time of admission from information
provided by the person being admitted or confined but, when it cannot be so
obtained, the information shall be obtained from relatives or other persons
acquainted with the facts. The name and address of the person providing the
information shall be a part of the record."
SECTION
2.17.
Said
title is further amended by revising subsection (a) of Code Section 31-10-29,
relating to privileged nature of disclosures, notification of local registrar of
institutional deaths and fetal deaths, and notification of the board of voting
registrars of adult deaths, as follows:
"(a)
Any person having knowledge or facts concerning any birth, death, spontaneous
fetal death, marriage,
induced
termination of pregnancy, divorce,
dissolution of marriage, or annulment may disclose such facts to the state
registrar, and such disclosure shall be absolutely privileged and no cause or
action may be brought or maintained against such person for such
disclosure."
SECTION
2.18.
Said
title is further amended in subsection (b) of Code Section 31-32-14, relating to
the effect of certain provisions relating to living wills on other legal rights
and duties, by striking the last sentence.
SECTION
2.19.
Title
33 of the Official Code of Georgia Annotated, relating to insurance, is amended
in subsection (c) of Code Section 33-24-59.6, relating to prescribed female
contraceptive drugs or devices and insurance coverage, by striking the last
sentence.
SECTION
2.20.
Said
title is further amended by revising subparagraph (C) of paragraph (1) of Code
Section 33-60-3, relating to definitions, as follows:
"(C)
Coverage of testing for chlamydia in Code Section 31-17-4.1; coverage for
complications of pregnancy in Code Section 33-24-24; coverage for general
anesthesia and related hospital and outpatient facility charges for dental care
for persons who are developmentally disabled, seven or younger, neurologically
impaired, or suffering severe face or head trauma in Code Section 33-24-28.4;
surveillance tests for ovarian cancer in Code Section 33-24-56.2; colorectal
cancer screening and testing in Code Section 33-24-56.3; coverage for hospital
stays after delivery in Code Section 33-24-58.2; direct access to obstetricians
and gynecologists in Code Section 33-24-59; treatment of dependent children with
cancer in Code Section 33-24-59.1; coverage for equipment and self-management
training for individuals with diabetes in Code Section 33-24-59.2; coverage for
prescribed female contraceptive drugs or devices in Code Section
33-24-59.6,
provided that nothing contained in this paragraph shall be construed to require
any insurance company to provide coverage for
abortion; coverage for prescription
inhalers in Code Section 33-24-59.8; coverage for autism in Code Section
33-24-59.10; coverage for mastectomy and lymph node dissection in Code Section
33-24-72; coverage for mammograms,
pap
Pap
smears, and screening for prostate cancer in Code Sections 33-29-3.2 and
33-30-4.2; provisions concerning mail-order pharmaceuticals in Code Section
33-30-4.3; and coverage for child wellness exams in Code Sections 33-29-3.4 and
33-30-4.5."
SECTION
2.21.
Chapter
34 of Title 43 of the Official Code of Georgia Annotated, relating to
physicians, acupuncture, physician assistants, cancer and glaucoma treatment,
respiratory care, clinical perfusionists, and orthotics and prosthetics
practice, is amended by striking and reserving paragraph (8) of subsection (a)
of Code Section 43-34-8, relating to the authority of the Georgia Composite
Medical Board to refuse license to or discipline physicians, restoration of
licenses, enforcement investigations, evidentiary privileges, closed hearings,
immunity for reporting violations, when investigation or assessment of
licensee's fitness to practice is required, failure to appear, and publication
of final disciplinary action.
SECTION
2.22.
Said
chapter is further amended by striking and reserving subsection (l) of Code
Section 43-34-25, relating to delegation of certain medical acts to advanced
practice registered nurses, construction and limitations of such delegation,
definitions, conditions of nurse protocol, and issuance of prescription drug
orders.
SECTION
2.23.
Said
chapter is further amended by repealing Code Section 43-34-110, relating to
abortions not to be performed by physician assistants, which reads as
follows:
"43-34-110.
Nothing
in this article shall be construed to allow a physician assistant to perform an
abortion or to administer, prescribe, or issue a drug order that is intended to
cause abortion to occur pharmacologically."
SECTION
3.
In
the event any section, subsection, sentence, clause, or phrase of this Act shall
be declared or adjudged invalid or unconstitutional by the Georgia Supreme
Court, such adjudication shall in no manner affect the other sections,
subsections, sentences, clauses, or phrases of this Act, which shall remain of
full force and effect as if the section, subsection, sentence, clause, or phrase
so declared or adjudged invalid or unconstitutional were not originally a part
hereof. The General Assembly declares that it would have passed the remaining
parts of this Act if it had known that such part or parts hereof would be
declared or adjudged invalid or unconstitutional. No portion of this Act may be
found to be unconstitutional by the federal courts as they lack the subject
matter jurisdiction to instruct this state how or whether to prosecute certain
crimes.
SECTION
4.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.