TaxWatch: With Roe v. Wade overturned, Georgia allows pregnant women to claim embryos as dependents — and it may not be the last state to do so

Pregnant women in Georgia can now claim their embryo as a dependent on their state income taxes, the state’s revenue department said this week in a decision reflecting the array of new questions for a country without a federal right to abortion.

The Georgia Department of Revenue guidance enables women carrying “an unborn child (or children) with a detectable human heartbeat (which may occur as early as six weeks’ gestation)” to claim a dependent personal exemption worth $3,000 for each embryo.

The guidance comes more than a month after the U.S. Supreme Court overturned the federal constitutional protections for an abortion under 1973’s Roe v. Wade ruling, and let state lawmakers and voters decide the abortion policies in their state.

Following the Supreme Court decision, a federal appellate court cleared the way for Georgia’s abortion ban after six weeks of pregnancy to take effect. The state laws allow certain exceptions, including rape, incest and when the mother’s life is in danger.

“The U.S. Supreme Court last month overturned the federal constitutional protections for an abortion under 1973’s Roe v. Wade.”

The revenue department’s guidance says women claiming the dependent deduction need to provide “relevant medical records and other supporting documentation” if the department asks for it.

Eligibility to claim the dependent exemption began July 20, the same day the appellate judges lifted the stay on Georgia’s law.

When it comes to potential tax benefits, “no other state currently provides similar benefits that normally would be available to a child to a fetus,” said Jared Walczak, vice president of state projects at the right-leaning Tax Foundation’s Center for State Tax Policy. “Georgia is the first to do so.”

However, it might not be the last, Walczak added. Many state legislatures are on recess so it may still take time for proposals to materialize, he said.

Other states are moving in that direction. For example, a Michigan bill would let parents claim a $200 income-tax credit for a fetus that reached 12 weeks gestation by the end of 2022. Last year, the bill passed the legislature’s House of Representatives.

Meanwhile, a federal judge last month blocked Arizona’s 2021 law extending personhood to unborn children.

As the idea of “fetal personhood” gains traction in some state legislatures, there’s a wide swath of ways it may be applied — not to mention an equally large body of questions, said Naomi Cahn, a University of Virginia law professor.

“‘This is a signal of what’s to come in other states that define personhood starting as early as Georgia does.’”

— Naomi Cahn, a University of Virginia law professor

“This is a signal of what’s to come in other states that define personhood starting as early as Georgia does,” Cahn said. But such definitions could get very complicated, she said.

For example, the Georgia tax rules might open up questions about medical privacy, Cahn said. More generally, the concept may also raise questions about estate laws and when the property rights of a fetus kick in, she noted. And it could complicate the whole practice of in-vitro fertilization with new questions, she said.

In another case, an eight-months pregnant woman in Texas driving in the carpooling lane recently said a traffic ticket was unfair because her unborn baby counted as a passenger.

“Each state is developing its own policies and Georgia shows how far that policy can go,” Cahn said.

In many states, the fight over abortion access in a post-Roe world is intense.On Tuesday, Kansas voters rejected a ballot referendum that could have allowed state lawmakers to curtail or ban abortion.

In Georgia, abortion is also an issue in a heated gubernatorial race between Democratic challenger Stacey Abrams and Republican incumbent Brian Kemp.

The tax guidance raises worrying questions, Abrams’ campaign manager, Lauren Groh-Wargo, said on Twitter
“So what happens when you claim your fetus as a dependent and then miscarry later in the pregnancy, you get investigated both for tax fraud and an illegal abortion?”

Kemp’s office could not be immediately reached for comment.

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