CNN reported Friday that “For nearly seven months, it has been illegal for physicians in Georgia to provide abortions after 20 weeks of pregnancy — but almost no one knew it.” The culprit was a simple clerical error. Nothing nefarious.
However, the error has huge ramifications, because while nobody knew it was illegal to provide abortions after 20 weeks, such abortions were being provided. The question now is whether doctors should be held liable under a law nobody knew was in effect.
To nobody’s surprise, Republicans say, “Yes.” Georgia Right to Life’s Gen Wilson proclaimed that, “Dozens, if not hundreds, of babies between 20 and 24 weeks gestation were illegally killed” since the law nobody knew was in effect went into effect. She wants people to be prosecuted for breaking a law they didn’t know – through no fault of their own – was in effect.
Not an obstacle to so-called pro-lifers, of course. The GOP is the party, after all, that likes closed door sessions nobody can monitor. Laws passed in secret, attacks on women’s reproductive rights disguised in agriculture bills and so forth.
Here is how this tragicomedy went down, according to CNN:
Gov. Nathan Deal signed into law the Pain Capable Unborn Child Protection Act in 2012. The law reduced the legal time limit for abortions from 24 weeks to 20, based on the medically debated claim that fetuses can feel pain after 20 weeks.
The American Civil Liberties Union filed a lawsuit on behalf of the obstetricians in November 2012, challenging the measure on the grounds that it violates the right to privacy, ACLU Reproductive Freedom Project Director Jen Dalven said. An injunction prevented the law from taking effect while the lawsuit was in play.
Fast forward to October 2015, when Fulton County Superior Court Judge Kimberly M. Esmond Adams dismissed the lawsuit on the grounds of sovereign immunity, which bars citizens challenging the constitutionality of state law and protects state agencies from being sued in their official capacity unless the General Assembly waives that protection. The injunction was lifted and the ban was effectively in place.
This is where the clerical error enters the picture. The Georgia Department of Public Health did not know, and the ACLU was not notified that it had 30 days to appeal the ruling. Explains CNN:
The organization only found out when a lawyer in another state noticed the order on the Fulton County Superior Court website and brought it to their attention, said Atlanta lawyer Don Samuel, who is representing the organization after the previous lawyer left.
A little historical perspective here might be in order. In an era of infinitely worse communications, ancient Rome felt it critically important people knew about new laws, so they could not only obey them, but not use the excuse that they didn’t know. So the Roman government took great pains to ensure a populace with much lower literacy rates than our own, was informed. There is a lesson here for Republicans, not that they will heed it.
So public notices were posted, and Roman jurist Ulpian stated that “By ‘public notice’ we mean one written in clear letters, posted in such a way that it may be read properly from ground level, in front of an inn, for example, or in front of a place of business – not in a hidden place but in the open” (Digest 184.108.40.206).
Nor did the Romans, unlike the Republicans 2000 years of increasing Enlightenment later, mind posting such notices in languages other than their own. Ulpian said Latin or Greek depended, quite sensibly, on where the notice was placed. As historian David S. Potter has noted (Life, Death, and Entertainment in the Roman Empire, 1999), “Roman governors were expected to hold court in Punic and Aramaic as well as Latin and Greek (Digest 220.127.116.11). Punic was the Phoenician language of Roman North Africa and Aramaic, was, of course, the everyday language of Jesus’ Judea.
You would think, of course, that if a bunch of imperialist Romans of 2000 years ago could make an effort to inform people of what laws they were supposed to obey, modern Republicans could do the same. And this is where austerity ideology enters the picture. Don Samuel points out that “There’s no good explanation for what happened, but nobody thinks it’s anything sinister,” he said. “This is what happens when you underfund the court system.”
This would be like the Romans saying they couldn’t afford some white-painted signs (which is what they used for most purposes) so people would just have to continue in ignorance until they were arrested or sued for doing something they didn’t know was illegal. But our evidence doesn’t show the Romans making these excuses.
They put up the signs in legible letters at eye level and had somebody read out the law. This was followed, says historian Clifford Ando (Imperial Ideology and Provincial Loyalty in the Roman Empire, 2000) by a grace period “during which people could become acquainted with the text of a new statute.” This practice was in place as far back as 200 B.C.E., but 2200 years later, Republicans can’t be asked to make the same effort.
It wasn’t the fault of the doctors that they did not know the law. The buck stops with a Republican government that refuses to spend a buck to ensure the government functions to the benefit of all, including abortion providers and, of course, the women having abortions.