This tax season in Georgia, some people were asked an unexpected question: “Were you pregnant in 2022?”
It’s the first time anyone in the U.S. has seen the impact of a fetal personhood law on their tax forms. Georgia initially passed its controversial “fetal heartbeat” bill in 2019, which banned abortion at the point of electrical activity in the embryo except in limited cases of rape or incest, and took additional measures to grant legal rights to fetuses. The law was promptly challenged in federal court and was ultimately struck down.
But all that changed last June when the Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade. The decision allowed Georgia to revisit its 2019 law, which was upheld and went into effect a month later.
Georgia’s law is unique for the lengths it goes to give fetuses the same rights as people. While other states have attempted to include language on fetal personhood into their abortion laws, Georgia remains the only state to include fetuses as an income tax deduction.
Kwajelyn Jackson, executive director of the Feminist Women’s Health Center in Atlanta, finds these provisions highly concerning.
“What the opposition tries to assert is that this [fetus] is a separate entity from you, even though it is inside of you,” she said. “And therefore, your decisions are not your own because they implicate this other person that we have, in some cases, deemed as more valuable than you.”
Under the new law, Georgia residents can choose to claim a fetus as a dependent on their taxes. Anyone who claims an “unborn dependent” on their taxes is eligible to reduce their taxable income by $3,000 per fetus. If filing separately, only one parent may claim this exemption.
According to numerous reproductive justice advocates across the state, the tax exemption is one way of extending fetal personhood across Georgia’s broader legal framework. Jackson views the inclusion of a tax exemption as mere lip service to supporting pregnant people and families without making meaningful change.
“This was not necessarily a good faith attempt to support people in pregnancy because, at the same time as this was being passed, we were still fighting to expand Medicaid coverage for pregnant people beyond 60 days after delivery,” Jackson said. She also stressed the need to improve Georgia’s maternal mortality rates, which are the worst in the country, and address systemic racism within health care, which results in Black maternal mortality rates being twice as high as white women in the state.
While filing for the exemption itself is relatively straightforward, the bulk of the uncertainty lies in what happens next. The state has provided little clarity on what documentation may be required in an audit, nor has it established provisions on how this information could be used in the future. Although the state’s guidance document explains that the exemption could apply in the event of a stillbirth or miscarriage, it does not mention abortions.
The lack of clarity concerns Allison Coffman, the executive director of the reproductive rights collaborative Amplify Georgia. One of the biggest unknowns is whether someone may be flagged for an audit if they claim the exemption one year but do not claim a dependent in the next.
“I worry that [auditors] might start to get at intention,” she said, envisioning multiple potential lines of questioning. “Were you aware that you were going to get an abortion? Were you trying to defraud the government and get tax deductions that you weren’t owed?”
Coffman also worries about the increased risk of criminalization when yet another person—in this case, an auditor—is looped into knowing someone’s personal pregnancy information.
“Any time you force another person to be in that circle of knowledge, you are opening yourself up to greater risks,” she said.
Plus, audits themselves are not equitably performed across income or race.
“Recent reports show that Black folks are audited at a much higher rate than white folks,” Coffman said. “And so when we talk about who could potentially get in trouble for this, who may be audited and required to provide documentation—it’s really going to be Black folks.”
Beyond the legal risks, Coffman thinks the tax exemption could be emotionally distressing.
“To me, it’s just cruel,” she said. “As somebody who has had miscarriages, the thought of having to explain my pregnancy loss and document it in an auditing process … honestly, it is unfathomable to me that I would need to prove that my miscarriage was legitimate.”
Georgia’s law raises difficult questions for advocates on how to counsel clients regarding claiming the tax exemption.
“Since it’s so new, it just feels like a great unknown,” Coffman said. “And it really isn’t something we’re used to, as non-lawyers and non-accountants.”
Jackson agrees. “We can’t advise people on their tax preparation,” she said. She ultimately views the decision to claim the exemption as an extension of personal choice. “If this [tax exemption] is available and legal, and there is some method for people to be able to pursue it, it’s really not my place to say that they can’t.”
For some, simply having to consider the nuances of counseling clients through new and potentially risky tax decisions represents a kind of concession. Monica Simpson, the executive director of the national reproductive justice collaborative SisterSong, said that shifting gears from fighting Georgia’s law in court to operating within its many constraints has been draining.
“We have been so focused on trying to defeat this, and to now have to circle back to think about these additional pieces is challenging,” she said. “They’re using every possible mechanism that they can to move their agenda forward, which is just mind blowing.”
In her clinic, Jackson is concerned about how far fetal personhood could go.
“We have no real clarity from the state about how it will affect other parts of the law that have nothing to do with the provision of health care, or how it might criminalize people for [their] actions,” she said.
Ultimately, a year after the Dobbs decision, experts are still struggling to understand what impact the fetal personhood law will have and how they may shield their clients from potential tax risks. However, Coffman has reflected on her personal stance.
“Would I report a pregnancy?” Coffman asked. “I don’t think I would feel comfortable at all in doing that.”