Federal Courts to Georgia and Tennessee: Nice Try on Abortion Bans

The six-week ban is a wall against which lawmakers have been bashing their heads incessantly in the hopes that it will crumble. And it might.

[A sign directed at Governor Brian Kemp that abortion bans are wrong]
Protesters came out in full force after Georgia Gov. Brian Kemp introduced a six-week ban last year. Tami Chappell/Getty Images

Last week, two federal courts told Georgia and Tennessee to take their near-total abortion bans and shove them. That’s exactly what the courts should have done, and Georgia and Tennessee surely expected it.

Courts around the country have ruled time and again that pre-viability so-called heartbeat bans are unconstitutional. Federal courts have smacked down efforts by Arkansas, Kentucky, Mississippi, North Dakota, and Ohio to enact these near-total abortion bans, some of which ban abortion as early as six weeks, long before most people even know that they are pregnant. And in Iowa, a state court similarly rejected Republican lawmakers’ efforts to enact a six-week ban. In fact, no court anywhere—federal or state—has permitted a six-week ban to go into effect. But that didn’t stop Georgia and Tennessee from taking their shot.

In May 2019, Georgia Gov. Brian Kemp (R) signed HB 481, dubbed the Living Infants Fairness and Equality (LIFE) Act, into law. The act purports to champion the lives of “unborn children,” a rather ironic state of affairs given the lawsuit Kemp filed last week against Atlanta Mayor Keisha Lance Bottoms in an attempt to block her from enforcing a citywide mask mandate to stop the spread of COVID-19.

In late June of this year, Tennessee rammed HB 2263 through the legislature in the middle of the night, at a time when the statehouse was closed to the public—almost as if lawmakers were aware that what they were doing was horseshit.

That’s because the law in this area is clear.

As the U.S. Supreme Court said in Roe v. Wade, states may not ban abortion outright before the fetus is determined to be viable. That doesn’t happen until around 24 weeks’ gestation. There’s no world in which a six-week pregnancy is viable, and that means six-week bans are unconstitutional. (I get the sense that jazz hands might be appropriate here—maybe a little razzle-dazzle would help this basic concept sink into anti-choice lawmakers’ heads—but out of a sense of decorum, I will refrain.)

In Planned Parenthood v. Casey, the Court developed an undue burden analysis that asks one simple question: Is the law in question a substantial obstacle to a person’s right to choose a pre-viability abortion? Quite plainly, a pre-viability abortion ban is a substantial obstacle to getting a pre-viability abortion. Again, I shall refrain from adding jazz hands to emphasize this basic point.

At this juncture, one might wonder if states like Georgia and Tennessee are simply trolling. Certainly their abortion crusade has all the hallmarks. They disregard facts like trolls do, claiming fetal heartbeats can be detected at six weeks when that’s not true—a six-week embryo doesn’t even have a heart. A six-week embryo, in fact, has no cardiovascular system of any kind. Rather, the “heartbeat” in a six-week embryo is a group of cells with electrical activity. Yet anti-choice advocates insist on calling that fetal pole activity a heartbeat, facts be damned, because “heartbeat” is far more provocative.

Anti-choice lawmakers also insist on raising issues that have nothing to do with the matter at hand. Take Georgia, for example, which complained that the trial court wouldn’t let it present irrelevant evidence.

Georgia insisted that it should be permitted to gather and submit evidence showing its alleged interest in banning abortion at six weeks. Georgia’s lawyers wanted a spectacle, where they would keen about how six-week embryos have heartbeats (they don’t) and introduce experts to explain how fetuses are masturbating in the womb and therefore deserve to live (a lawmaker from Texas actually made this outlandish claim back in 2013)—all in an effort to prove they should be able to ban abortions at six weeks, even though no fetus is viable at six weeks and states can’t ban abortion unless a fetus is viable. States have no interest—in the potentiality of fetal life or otherwise—that trumps a pregnant person’s right to a pre-viability abortion. Even so, Georgia complained that it wouldn’t be fair to enter judgment in favor of SisterSong, the plaintiff challenging Georgia’s six-week ban, without giving the state an opportunity to present evidence of its interest in banning abortion at six weeks.

But why shouldn’t they be able to present that evidence, you may be thinking.

Stop it! That’s what they want you to think.

The Supreme Court has said that people can terminate a pregnancy for any reason up to the point of fetal viability, and that there is no state interest that trumps that right. This means the only thing SisterSong has to prove is that the law interferes with a person’s right to a pre-viability abortion. It doesn’t matter what the state interest is. And if it doesn’t matter, then there’s no reason for a court to let Georgia waste time and money presenting evidence to bolster a claim that even if true, wouldn’t make a difference.

And then there’s Tennessee. Tennessee lawmakers’ attempt to ban abortion by ramming a bill through the legislature in the middle of the night was practically cartoonish. The bill itself is even more cartoonish. It contains a veritable Russian nesting doll of gestational bans, banning abortion at six weeks, eight weeks, ten weeks, 12 weeks, 15 weeks, 18 weeks, 20 weeks, 21 weeks, 22 weeks, 23 weeks, and 24 weeks. The bill explains that if a court determines any ban to be unconstitutional, then the next ban goes into effect, even though (per our earlier discussion) all pre-viability abortion bans are unconstitutional.

Hey, Tennessee? There’s a pandemic happening. Read the room.

The six-week ban is a wall against which lawmakers have been bashing their heads incessantly in the hopes that it will crumble.

And the truly infuriating thing is that the wall might crumble: Over the past four years, conservatives have captured the federal courts. Trump has appointed 200 judges, flipping entire circuit courts from liberal or mixed to decidedly conservative. He has moved the Supreme Court hard right, forcing those of us who celebrate progressive values to put all of our eggs in John Roberts’ basket, which is a frightening prospect indeed.

In June Medical Services, Roberts made it clear that he would be willing to restrict abortion access and give anti-abortion lawmakers what they want—to either ban abortion or regulate it out of existence—if those activists would provide the right vehicle.

With nonsense legislation like Georgia’s six-week ban or Tennessee’s Russian nesting doll of bans, abortion advocates can rest easy; barring a Supreme Court ruling discarding Roe’s viability test, passing these near-total abortion bans is a waste of time and money. So let’s hope these states don’t wise up and start passing abortion restrictions that have a chance in hell of making it past five Supreme Court justices itching to restrict abortion.