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Georgia’s Six-Week Abortion Ban Can Take Effect, Court Rules (2)

July 20, 2022, 7:13 PMUpdated: July 21, 2022, 7:12 PM

A Georgia law banning abortions after a fetal heartbeat is detected can now be enforced, the Eleventh Circuit held Wednesday, citing the US Supreme Court’s ruling finding no constitutional right to the procedure.

Judges from the US Court of Appeals for the Eleventh Circuit vacated a lower court injunction on the state’s controversial abortion law, which prohibits the procedure around six weeks into pregnancy. The decision is the latest in a string of rulings from courts allowing state abortion bans to go into effect after the Supreme Court overturned the landmark decision in Roe v. Wade.

Georgia Attorney General Chris Carr called on the appeals court in June to allow the state’s abortion ban to take effect. He said in a statement at the time that the high court’s “decision in Dobbs is constitutionally correct and rightfully returns the issue of abortion to the states and to the people—where it belongs.”

The Eleventh Circuit panel, led by Chief Judge William Pryor, said Wednesday that “Georgia’s prohibition on abortions after detectable human heartbeat is rational,” and “respect for and preservation of prenatal life at all stages of development is a legitimate interest.”

The case stems from a lawsuit filed in June 2019 by the SisterSong Women of Color Reproductive Justice Collective and other abortion rights groups who argued that the state abortion ban “violated women’s substantive due process rights under the Fourteenth Amendment.” They also argued that the law’s definition of a “natural person” to include the unborn is “unconstitutionally vague on its face.”

Georgia state officials argued in defending the law that the “natural person” definition “functions clearly” by “providing that unborn children with detectable heartbeats shall be included in the State’s population-based determinations.”

‘Constitutional Duty’

The US District Court for the Northern District of Georgia granted in July 2020 the plaintiffs’ motion for summary judgment and entered a permanent injunction prohibiting state officials from enforcing the law. State officials appealed, and both sides agreed to delay a decision in the case until the Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization.

Georgia Gov. Brian Kemp (R), who signed the abortion ban into law in 2019, said in a statement Wednesday that the appeals court’s decision “affirms our promise to protect life at all stages.”

“We are overjoyed that the court has paved the way for the implementation of Georgia’s LIFE Act,” he said. “As mothers navigate pregnancy, birth, parenthood, or alternative options to parenthood—like adoption—Georgia’s public, private, and non-profit sectors stand ready to provide the resources they need to be safe, healthy, and informed.”

Georgia Attorney General Chris Carr (R) said in an emailed statement that it’s “the constitutional duty of the Georgia Attorney General to defend the laws of our state.”

The pro-life camp praised the decision as well.

“This is fantastic. I think this flows naturally from the Dobbs decision which clearly said states can now protect life at any stage of development. That was crystal clear,” said Denise Harle, senior counsel and director of the center for life with Alliance Defending Freedom.

“Like most pro life laws,” Georgia’s approach “protects unborn children and protects mothers,” she said. “It’s clear that the point of this is to protect unborn children from being killed through abortion, which harms women.”

She added that the ruling gives “encouragement to other states to protect life and find more ways to give real support to families experiencing unexpected pregnancies.”

Meanwhile, a judge in Louisiana on Thursday blocked the abortion ban there, allowing the state’s three clinics to continue providing services while the challenge goes to trial. Louisiana Attorney General Jeff Landry (R) is expected to appeal the order.

‘We All Deserve Better’

The plaintiffs and others almost immediately shared strong opposition to the court’s decision.

Monica Simpson, executive director of SisterSong, said in a statement that “abortion bans hurt Black Women, low-income folks, and Queer and trans families the most.”

“The women and families of Georgia deserve better. We all deserve better,” she added. “No matter how long it takes, we are here in this battle until everyone has full bodily autonomy.”

The ACLU, which represented SisterSong in the case, called the decision “horrific,” and criticized the court for immediately reversing the lower court’s injunction, rather than waiting the typical 28-day period for the law to take effect.

“This is a highly unorthodox action that will immediately push essential abortion care out of reach for patients beyond the earliest stages of pregnancy,” the group said in a joint statement with the ACLU of Georgia Center for Reproductive Rights, Planned Parenthood Southeast, and Planned Parenthood Federation of America.

“Across the state, providers are now being forced to turn away patients who thought they would be able to access abortion, immediately changing the course of their lives and futures,” they added.

Brigitte Amiri, the lead ACLU attorney for SisterSong, didn’t say whether there were plans to appeal the decision, noting that her team has yet to meet about next steps.

Georgia Sen. Raphael Warnock (D), who faces reelection in November, tweeted that the ruling allows “politicians to take away women’s ability to make their own health care decisions.”

“I will never stop fighting to restore the rights of women to determine and access their own care,” he added.

Lawmakers on Capitol Hill are trying to ensure access to abortion and other reproductive health care in the post-Roe era. The House on Thursday passed a measure (H.R. 8373) to codify access to contraception into law. The bill faces an uncertain future in the Senate, where Democrats will need to rally support from enough Republicans to pass.

Abby Ledoux, associate director of state advocacy communications at Planned Parenthood Federation of America, said the organization is “committed” to protecting abortion access in Georgia.

“Our fight is not over,” she said.

The case is SisterSong Women of Color Rep. Justice Collective v. Governor of Georgia, 11th Cir., No. 20-13024, 7/20/22.

(Updates July 20 story with information on Louisiana abortion law ruling and federal contraception bill starting in the 14th paragraph.)

To contact the reporter on this story: Celine Castronuovo at ccastronuovo@bloombergindustry.com and Ian Lopez at ilopez@bloombergindustry.com.
To contact the editor responsible for this story: Alexis Kramer at akramer@bloomberglaw.com