UPDATE, October 1, 2019, 4:00 p.m.: District Judge Steve C. Jones ruled on Tuesday against Georgia’s unconstitutional ban, blocking it from taking effect.
Georgia was one of six states to have passed a so-called heartbeat abortion ban this year. Scheduled to take effect in January, the law, HB 481, prohibits an abortion as soon as fetal cardiac activity can be detected in a pregnancy, which for some patients is as early as six weeks and before they even know they are pregnant. Like the other “heartbeat” bans, Georgia’s law should immediately be blocked by a federal court because it unconstitutionally bans abortion well before fetal viability, something the U.S. Supreme Court has made clear states cannot do. Of course, that hasn’t stopped conservative lawmakers in states with Republican majorities from passing these laws. A federal judge will decide on Monday whether Georgia will be the first state to see its extreme pre-viability “heartbeat” ban take effect.
On May 7, Gov. Brian Kemp (R) signed into law HB 481, the Living Infants Fairness and Equality Act (LIFE Act), which bans abortion after a “fetal heartbeat” is detected. According to the state attorneys defending the measure, HB 481’s primary purpose is to “advance Georgia’s interest in protecting the life of the unborn.” They claim the law does this by both banning nearly all abortions and making substantive changes to other areas of law in order to establish fetal “personhood.” The law specifically states that it shall “be the policy of the State of Georgia to recognize unborn children as natural persons.” To that end, HB 481 is both a near-total abortion ban and a fetal “personhood” measure.
Rewire.News Senior Legal Analyst Imani Gandy in July wrote an excellent takedown of HB 481. As Gandy noted, the law is steeped in scientific inaccuracies. At six weeks, an embryo doesn’t have a heartbeat, let alone a cardiovascular system. The law’s attempt to grant fertilized eggs, blastocysts, embryos, and fetuses the status of “a class of living, distinct persons” that deserve “full legal recognition” takes Georgia’s ban even further than similar laws passed in Ohio, Kentucky, and Mississippi, making Georgia’s “heartbeat” ban the most extreme version of this type of anti-choice measure in the country. Only Alabama’s total abortion ban is more extreme.
The attorneys defending the Georgia ban are trying to disguise how dangerous and out-of-step the law is by arguing that instead of blocking the measure, the court should use HB 481 as an opportunity to directly address the “precise contours” of the state’s interest in protecting “unborn life.” “[T]he Supreme Court has repeatedly recognized the States’ legitimate and substantial interest in protecting the life of the unborn, but the Court has offered little guidance on the precise contours of that interest,” the Georgia attorneys’ brief states.
Sex. Abortion. Parenthood. Power.
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In a simple yet effective rebuttal to the attorneys’ argument, the challengers write: “[U]nder a half century of binding Supreme Court precedent, Georgia ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’” The brief from the plaintiffs, including the Atlanta-based reproductive justice organization SisterSong, continues: “The law could not be more settled and precise: Georgia cannot ban abortion prior to viability, a per se rule for which Plaintiffs cited plentiful authority.”
Arguing that the law is “unsettled” when it comes to banning abortion pre-viability is not the only disingenuous argument attorneys from the state make to defend HB 481. They advance two other dangerous and intertwined arguments. First, the attorneys claim that HB 481 isn’t a “ban” but merely a “regulation” on abortion. Second, they claim that in challenging the law’s constitutionality the court should not apply the traditional “undue burden” test of Planned Parenthood v. Casey and instead argue for a lower level of judicial review, one which presumably they believe HB 481 can clear.
“First, as a factual matter, the LIFE Act does not ‘ban’ pre-viability abortions,” the Georgia attorneys’ brief states. “It allows a woman to have an elective abortion up to the point that a heartbeat is detected, which (depending on the type of ultrasound used) may not occur until 9 to 12 weeks lmp [last menstrual period].” That distinction, along with the Act’s narrow exception for “medical emergency, rape, or incest” is enough to save HB 481 from being an unconstitutional ban on pre-viability abortion to merely a restriction, according to the attorneys.
Federal courts have previously rejected similar arguments that a ban is merely a restriction, including in a 2014 challenge to Arkansas’ “heartbeat” ban, and the Georgia court should similarly reject these arguments here. HB 481 has the practical effect of banning abortion, full stop. Lawmakers cannot change that fact simply by tacking on a narrow exception that would allow abortion beyond a detectable “heartbeat” in a handful of cases.
Courts have rejected those arguments on the grounds that even with an exception, laws like Georgia’s amount to an undue burden on abortion rights. That’s why the Georgia attorneys then go on to argue that the undue burden test should not apply here. “Indeed, the Supreme Court has applied the ‘undue burden’ test only in cases dealing with maternal health and ‘potential life’ regulations—laws that encourage women to freely choose childbirth over abortion,” the brief states.
“But the LIFE Act is different. Unlike most abortion laws reviewed by the Supreme Court—such as laws on informed consent, parental notification, or hospital admitting privileges—the LIFE Act takes the novel step of advancing a separate and distinct constitutional interest in protecting unborn human life,” the state’s attorneys write.
It’s hard for me to overstate just how pernicious their argument is here. The federal courts have not differentiated between a state’s interest in “potential” life versus “unborn” life and in fact have used the terms interchangeably. This is a distinction Georgia attorneys have concocted to try and bait the court into adopting a standard less rigorous than the undue burden test.
The undue burden standard is a mess. I’ve written tens of thousands of words critiquing it. But it is undoubtedly better than what anti-choice advocates are claiming should apply when judging abortion restrictions. If these advocates want to challenge Planned Parenthood v. Casey and that standard directly, they should just do so rather than mounting a sideways attack on a constitutional standard. If they believe the undue burden standard is so wrong, anti-choice advocates could take that argument to the federal courts directly as Justice Clarence Thomas has invited, rather than what the Georgia attorneys are doing here.
It is hard to overstate how pernicious Georgia’s arguments are, just as it is hard to overstate how much is on the line should the court accept them. Georgia already has the worst outcomes in the country for maternal health. Gov. Kemp and Republican lawmakers seem intent on making that problem much worse by forcing people into staying pregnant. Black patients, in particular, will feel the effects of this abortion ban the most—a fact the plaintiffs led by SisterSong hammer in their complaint and papers filed with the court in support of blocking the measure. “Georgians face one of the highest risks of pregnancy-related death in the nation, and pregnancy is three times as deadly for Black Georgians as it is for white Georgians,” they write. “Rather than working to end preventable deaths, and rather than honoring Georgians’ reproductive health care decisions, the Legislature has instead chosen to criminalize abortion from the earliest stages of pregnancy.”
The federal judge will parse through these arguments on Monday. The law is not slated to take effect for another three months, so it is unlikely the court will issue an order immediately following the hearing. However, no matter the outcome, whoever loses at Monday’s hearing will all but certainly appeal this case to the U.S. Court of Appeals for the 11th Circuit, the conservative appellate district that hears cases from Georgia, Alabama, and Florida. So far, the 11th Circuit has rebuffed the most extreme bans coming from these states. If and when the Georgia case lands before it, the 11th Circuit should do so again.
Anti-choice lawmakers emboldened by the Trump administration’s efforts to stack the federal courts with judges committed to re-criminalizing abortion are teeing up test cases to stress test the durability of Casey and its precursor, Roe v. Wade. The effect isn’t just an effort to relitigate the constitutionality of abortion, but to also destabilize abortion care in the interim by causing confusion and fear among patients. That is the very definition of bad-faith lawmaking, and the federal courts should reject it outright. We’ll know later this year, though, if they will.