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Supreme Court Abortion Look Likely Defers Georgia Ban Decision

Sept. 24, 2021, 4:04 PM

Oral arguments on Georgia’s six-week abortion ban Friday seemed to be over before they started, with Chief Judge William H. Pryor Jr. opening with a suggestion that the Eleventh Circuit just halt the case.

The “prudent” course would be to wait for the U.S. Supreme Court to decide Dobbs v. Jackson Women’s Health Org., which presents the question of whether Mississippi’s ban on abortions after 15 weeks is constitutionally permissible.

But Pryor also indicated he would strike down the law if the Supreme Court does anything short of completely reversing Roe v. Wade, the seminal case recognizing a woman’s right to end a pregnancy before the fetus would be able to live outside the womb. The law likely wouldn’t survive an undue burden analysis, he said.

The three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit nevertheless heard arguments over a law that poses the question of how far states can go in reining in abortion rights. The law bans abortions once fetal cardiac activity has been detected, which generally occurs at around six weeks.

If the law gets greenlighted by the Eleventh Circuit, Georgia would join Texas in having the most restrictive abortion law in the country, as it would shut out most women from having the procedure. According to abortion providers, 87% of abortions in Georgia in 2019 took place after six weeks.

Dobbs Will Control

In Dobbs, Mississippi and numerous anti-abortion groups asked the nation’s top court to go beyond the 15-week ban issue and declare Roe unconstitutional. If it does that, the controversy surrounding Georgia’s law would end, Pryor said.

It’s rare to have a case in which the Supreme Court is likely to do most of the work for us, he said.

Judge Barbara Lagoa agreed with Pryor. The court doesn’t know what the Supreme Court’s analysis will be, so it would be smarter to wait, she said.

Jeffrey Harris, arguing for the state, agreed Dobbs will resolve the question of whether there is a constitutional per se rule barring laws that prohibit women from having previability abortions. Harris is with Consovoy McCarthy PLLC.

But Elizabeth Watson, representing challengers to the law, cautioned that Dobbs may not go that far. Questions about the validity of the six-week law won’t be answered if the justices limit themselves to deciding only that Mississippi’s 15-week law is valid, she said. Watson is an attorney with the American Civil Liberties Union’s Reproductive Freedom Project.

Of course, if the top court reaffirms Roe, then that “makes it easier for us,” Pryor said, strongly suggesting the Eleventh Circuit won’t decide on the legality of Georgia’s ban on abortions after six weeks’ gestation until after the top court issues its opinion.

Dobbs is scheduled to be argued Dec. 1. A decision may not be announced until June 2022.

Split Decision

Having tabled the issue whether the ban is per se unconstitutional for now, Pryor moved on to whether it imposes an undue burden. The state “couldn’t possibly win” an argument that the law doesn’t impose a substantial obstacle on women seeking abortions, he said.

Harris replied that the lower court never allowed the state to present argument on that question. Pryor agreed the district court court may have been mistaken in that, but suggested that it would have concluded the law failed the undue burden test anyway.

But he and Lagoa indicated they’re likely to side with the state on one aspect of the case, and hold that the six-week ban can be divorced from other sections of the law. The other provisions do things like give pregnant women child tax credits and require the father to help pay pregnancy costs.

The Supreme Court has “made clear” that a court shouldn’t invalidate more of a statute than is necessary to cure a defect, Harris said. This is an “obvious case” for severability, as many provisions seek to help mothers and their children, as opposed to banning abortion, he said.

Watson disagreed. The overall intent of the law is to ban abortion, she said. Severability doesn’t apply in this instance, she said.

Pryor noted that the law has a severability provision. Watson replied that the controlling Georgia Supreme Court law is that severability provisions aren’t binding. “It’s a guidance, not a command,” she said.

How can it be unconstitutional for states to demand an unborn child’s father help pay the mother’s pregnancy costs? Lagoa asked.

The child support and child tax credits might be valid if enacted as stand-alone laws, Watson said. But lawmakers’ whole purpose for enacting the Georgia’s law was to make abortion illegal, and the provisions can’t be separated from the unconstitutional law, she said.

It’s “inconceivable” these provisions aren’t severable, Harris said. The district court erred by blocking the law as a whole, he said.

Judge Harvey Schlesinger, of the U.S. District Court for the Middle District of Florida, sitting by designation, rounded out the panel.

American Civil Liberties Union Foundation, Center for Reproductive Rights, Planned Parenthood Federation of America, and Sean J. Young of Atlanta represent the providers in the Eleventh Circuit. Consovoy McCarthy PLLC and Georgia’s Attorney General’s Office represent the state.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is SisterSong Women of Color Reprod. Justice Collective v. Governor, 11th Cir., No. 20-13024, oral argument 9/24/21.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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