Hillman v. StateHillman v. State
The defendant, Jacquelyn Aretha Hillman, appeals from the Walton County Superior Court’s denial of her motion to quash an indictment charging her with a violation of Georgia’s criminal abortion statute. After finding that this statute does not apply to the defendant’s conduct, we reverse.
In May 1997, the defendant was indicted under
1. In her first enumeration, the defendant asserts that she cannot be prosecuted under
(a)
Further, “‘[i]t has always been the law that criminal statutes must be strictly construed against the [S]tate.’
McAllister v. State,
Accordingly,
(b) This conclusion is further bolstered by an examination of the development of Georgia’s prohibition against criminal abortion. The state’s first criminal abortion statute was enacted in 1876.
3
Brinkley v. State,
Although the legislature subsequently amended the criminal abortion statute
7
to allow for legal abortions following the United States Supreme Court’s rulings in
Roe v.
Wade
8
and
Doe v.
Bolton,
9
such amendment did not change prior judicial constructiоns regarding a pregnant woman’s culpability under the statute. See
Dortch v.
*743
Atlanta Journal,
The current statutory language is virtually identical to that of the previous statutes, with the exception of changes regarding gender referеnces and other insignificant grammatical differences. This indicates that “the General Assembly accepted the ruling in
Gullatt v. State,
supra, . . . as a correct interpretation of the statute.”
Wolcott v. Gaines,
supra at 374. “[I]t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions оf the courts. [Cits.]”
Buice v. Dixon,
Therefore, the legislative history indicates that, despite numerous opportunities, the General Assembly has refused to criminalize a pregnant woman’s acts in seсuring an illegal abortion. This Court cannot and will not usurp the function of the legislature by judicially enlarging an existing criminal statute. See
Dunn v. United States,
(c) Even so, the State argues that this Court should extend the сriminal abortion statute to encompass the defendant’s acts because of the egregious conduct for which she is charged, i.e., intentionally inflicting a gunshot wound to a neаr-term fetus in order to produce an abortion. 10 However, the potential ramifications of the State’s proposed overbroad construction of the statute certainly give pause.
Under such construction, any woman who suffers a post-viability miscarriage could be subject to scrutiny regarding whether or not she intentionally acted to cause the miscarriage. A woman would be at risk of a criminal indictment for virtually any perceived self- *744 destructive behavior during her pregnancy which could cause a late term miscarriage, to wit: smoking or drinking heavily; using illegal drugs or abusing legal medications; driving while under the influence of drugs or alcohol; or any other dangerous or reckless conduct. See generаlly State v. Luster, supra. Taken to its extreme, prohibitions during pregnancy could also include the failure to act, such as the failure to secure adequate prenatal medical care, and overzealous behavior, such as excessive exercising or dieting. Clearly, the legal truism “hard cases make bad law” applies here.
To compound the problem, the State argues that the issue of whether a woman who has participated in this risky behavior intended to cause her subsequent miscarriage would be a jury question. In other words, a рregnant woman who suffers a late term miscarriage could be subjected to criminal investigation, indictment, and prosecution long before a jury is asked to determine whether shе intentionally did anything to cause the miscarriage. This is a patently unjust approach.
Further, the State’s argument fails to address obvious due process concerns, i.e., whether the statute (as construed by the State) gives notice that certain behavior, which may otherwise be legal, is forbidden during pregnancy. See
Accordingly, we reject the State’s construction and overbroad application of this statute.
(d) Finally, this Court finds no merit in the State’s assertion that prior judicial constructions of the criminal abortion statutes do not apply in this case. The State points out that, in Gullatt v. State, supra, and Gaines v. Wolcott, supra, the pregnant women were not principal actors but were, instead, alleged to be accessories to the crime, while the defendant in this case was the principal actor. It is undisputed that no onе else was involved in this incident.
However, the State of Georgia makes no distinction between an accessory before the act and a principal actor, treating both as parties to the crime and assigning equal culpability.
2. The defendant’s second enumeration is rendered moot by our decision in Divisiоn 1, supra.
Judgment reversed.
Notes
Under the rules of statutory construction, “[t]he masculine gender includes the feminine and the neuter.”
“ ‘That any person who shall wilfully administer to any pregnant woman any medicine, drug or substance, or anything whatever, or shall employ any instrument or means whatever with intent thereby to procure the miscarriage or abortion of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall upon conviction, be punished as prescribed in section 4310 of the Revised Code of Georgia.’ Ga. Laws 1876, p. 113.” Brinkley v. State, supra at 543, n. 1.
See Ga. L. 1876, p. 113, § 2; Code 1882, § 4337b; Penal Code 1895, § 81; Penal Code 1910, § 81; Code 1933, § 26-1101; Code 1933, §§ 26-1201; 26-1203, enacted by Ga. L. 1968, p. 1249, § 1; Code 1933, § 26-1204, enacted by Ga. L. 1973, p. 635, § 1.
Penal Code 1910, § 81 read as follows: “Any person who shall willfully administеr to any pregnant woman any medicine, drug, or substance, or anything whatever, or shall employ any instrument or means whatever, with intent thereby to produce the miscarriage or аbortion of such woman,... shall be guilty of a misdemeanor.”
GCA § 26-1201 read as follows: “Except [when medically necessary,] a person commits criminal abortion when he administers any mediсine, drug or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.”
Ga. L. 1973, pp. 635-637.
Notably, the defendant has indicated that the gunshot wound was not intentionally inflicted but was, instead, the result of a botched suicide attempt.