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Georgia’s Six-Week Abortion Law Ruling Delayed by 11th Circuit

Sept. 28, 2021, 12:58 PM

A federal appeals court’s decision on the constitutionality of a Georgia law banning abortions after six weeks’ gestation has been delayed pending the U.S. Supreme Court’s ruling on the validity of a 15-week ban in Mississippi.

The U.S. Court of Appeals for the Eleventh Circuit halted the case pending a decision in Dobbs v. Jackson Women’s Health Org., which is set to be argued in the nation’s top court on Dec. 1.

Chief Judge William H. Pryor Jr. hinted that the Eleventh Circuit would stay the case during oral arguments on the Georgia ban earlier this month.

The Georgia law is one of the strictest in the U.S. It prohibits doctors from performing abortions once cardiac activity has been detected in a fetus, similar to one in Texas that’s been getting significant attention recently. About 87% of abortions in Georgia in 2019 were performed after that mark, according to providers.

Dobbs initially concerned only the Mississippi law. Like Georgia’s, it bans abortions before viability.

But the state and numerous anti-abortion groups asked the nation’s top court to use the case to overrule Roe v. Wade, the seminal case establishing a woman’s right to end a pregnancy before viability. If it does that, the controversy surrounding Georgia’s law would end, Pryor said.

Pryor began the argument by asking the state’s attorney, Jeffrey Harris of Consovoy McCarthy PLLC, if it wouldn’t be more “prudent” to just wait for the Supreme Court to decide Dobbs.

It’s not often a court gets a case in which the Supreme Court is likely to do most of the work for it, he said.

Elizabeth Watson, representing the law’s challengers, agreed. But she cautioned that Dobbs may not go so far as to overrule Roe.

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.

Judge Barbara Lagoa agreed with Pryor. Judge Harvey Schlesinger, of the U.S. District Court for the Middle District of Florida, sitting by designation, didn’t comment.

A lower federal court blocked Georgia’s law, and it isn’t currently in effect.

The Eleventh Circuit issued the unsigned stay order Monday.

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, 9/27/21.

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; Patrick L. Gregory at pgregory@bloomberglaw.com

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