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03 LC 21 7118
House Bill
63
By: Representative Franklin of the 17th
By: Representative Franklin of the 17th
A BILL TO BE
ENTITLED
AN ACT
AN ACT
To amend Article 6 of Chapter 5 of Title 16 of the Official
Code of Georgia Annotated, relating to feticide, so as to enact the "Due Process
and Equal Protection Restoration Act of 2003"; to define certain terms; to
provide that any person seeking to have an abortion performed shall first seek a
grand jury indictment against the fetus for an applicable capital offense; to
provide that only if the grand jury returns an indictment against the fetus for
the commission of a capital offense shall the court appoint a guardian ad litem
and shall a criminal prosecution of the fetus commence; to provide for a jury
trial; to provide that no execution shall take place without an adjudication of
the
fetus´s
guilt and unless a court has issued a death warrant; to provide for an expedited
appeal; to provide for penalties; to provide for automatic repeal; to provide
for related matters; to provide an effective date; to repeal conflicting laws;
and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF
GEORGIA:
SECTION 1.
This Act shall be known and may be cited as the "Due Process
and Equal Protection Restoration Act of 2003."
SECTION 2.
Article 6 of Chapter 5 of Title 16 of the Official Code of
Georgia Annotated, relating to feticide, is amended by inserting at the end
thereof the
following:
"16-5-81.
(a) As used in this Code section, the term:
(1) 'Abortion' means the intentional termination of human pregnancy 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 an abortion.
(2) 'Capital offense' means any offense for which the death penalty may be imposed.
(3) 'Death warrant' means an order of a superior court providing that an execution may proceed.
(4) 'Execution' means an abortion.
(5) 'Fetus' means a person at any point of development from and including the moment of conception through the moment of birth.
(b) No physician shall perform an execution in this state unless a death warrant has been issued as provided in this Code section.
(c) Any person seeking to have an execution performed shall first seek a grand jury indictment against the fetus for the commission of an offense for which the death penalty can be given, including the offense of murder as defined in Code Section 16-5-1, kidnapping as defined in Code Section 16-5-40, hijacking an aircraft as defined in Code Section 16-5-44, rape as defined in Code Section 16-6-1, armed robbery as defined in Code Section 16-8-41, or treason as defined in Code Section 16-11-1. Each district attorney in the state is directed to cooperate with any such person in presenting the case before the grand jury. Only if the grand jury returns an indictment against the fetus for the commission of one or more such capital offenses shall the court appoint a guardian ad litem to protect the rights of the fetus and shall the criminal prosecution against the fetus commence. The guardian ad litem shall be authorized to demand a jury trial to determine the guilt or innocence of the fetus, and the court shall hold such a trial within 30 days after the return of the indictment. If the finder of fact determines that the fetus is not guilty of the charges, the execution shall not be performed, and the fetus shall be permitted to continue through the stage of birth.
(d) If the matter is tried before the court as finder of fact, the court shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a record of the evidence be maintained. The court shall render its decision within 24 hours of the conclusion of the hearing, and a certified copy of the same shall be furnished immediately to the parties. The court shall issue a death warrant no earlier than 24 hours after a notice of an adjudication of guilt. No death warrant shall be issued while any appeal on behalf of the convicted fetus is pending. At such time as 24 hours from the notice of an adjudication of guilt has passed and no appeal is pending on behalf of the convicted fetus, a death warrant shall be issued immediately.
(e) An expedited appeal of the final order shall be available. The appellate courts are authorized and requested to issue promptly such rules as are necessary to ensure the expeditious disposition of procedures provided by this Code section.
(f) Any physician performing an execution without the issuance of a death warrant 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."
"16-5-81.
(a) As used in this Code section, the term:
(1) 'Abortion' means the intentional termination of human pregnancy 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 an abortion.
(2) 'Capital offense' means any offense for which the death penalty may be imposed.
(3) 'Death warrant' means an order of a superior court providing that an execution may proceed.
(4) 'Execution' means an abortion.
(5) 'Fetus' means a person at any point of development from and including the moment of conception through the moment of birth.
(b) No physician shall perform an execution in this state unless a death warrant has been issued as provided in this Code section.
(c) Any person seeking to have an execution performed shall first seek a grand jury indictment against the fetus for the commission of an offense for which the death penalty can be given, including the offense of murder as defined in Code Section 16-5-1, kidnapping as defined in Code Section 16-5-40, hijacking an aircraft as defined in Code Section 16-5-44, rape as defined in Code Section 16-6-1, armed robbery as defined in Code Section 16-8-41, or treason as defined in Code Section 16-11-1. Each district attorney in the state is directed to cooperate with any such person in presenting the case before the grand jury. Only if the grand jury returns an indictment against the fetus for the commission of one or more such capital offenses shall the court appoint a guardian ad litem to protect the rights of the fetus and shall the criminal prosecution against the fetus commence. The guardian ad litem shall be authorized to demand a jury trial to determine the guilt or innocence of the fetus, and the court shall hold such a trial within 30 days after the return of the indictment. If the finder of fact determines that the fetus is not guilty of the charges, the execution shall not be performed, and the fetus shall be permitted to continue through the stage of birth.
(d) If the matter is tried before the court as finder of fact, the court shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a record of the evidence be maintained. The court shall render its decision within 24 hours of the conclusion of the hearing, and a certified copy of the same shall be furnished immediately to the parties. The court shall issue a death warrant no earlier than 24 hours after a notice of an adjudication of guilt. No death warrant shall be issued while any appeal on behalf of the convicted fetus is pending. At such time as 24 hours from the notice of an adjudication of guilt has passed and no appeal is pending on behalf of the convicted fetus, a death warrant shall be issued immediately.
(e) An expedited appeal of the final order shall be available. The appellate courts are authorized and requested to issue promptly such rules as are necessary to ensure the expeditious disposition of procedures provided by this Code section.
(f) Any physician performing an execution without the issuance of a death warrant 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 3.
This Act shall be automatically repealed on the day
following the day the United States Supreme Court issues a decision expressly
declaring the overturn of Roe v. Wade, 410 U.S. 113
(1973).
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.