Court prepares decision on Georgia’s abortion law – WABE

A judges’ panel is one step closer to deciding whether Georgia’s restrictive abortion law can go into effect.

The state of Georgia and the coalition of groups challenging the law released new legislation just before midnight Friday night. The 11th Circuit Court of Appeals requested the briefs after the US Supreme Court ruled on Roe v. Wade and repealed the constitutional right to abortion last month.

Georgia law has been mired in litigation since Governor Brian Kemp signed it into law in 2019. If enacted, the law would ban most abortions after heart activity has been detected — usually around six weeks into a pregnancy and before most people know they’re pregnant.

Georgia Attorney General Stephen Petrany wrote to the court that the law should go into effect following the Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization.

“Appellants now have no case,” Petrany wrote in a brief to the court. “Your challenge to Georgia’s ban on post-fetal heartbeat abortions hinges on a theory of substantive due process, and Dobbs has argued that there is no substantive due process right to an abortion.”

The plaintiffs — reproductive rights groups and abortion providers represented by the American Civil Liberties Union — admit in their brief that most of their legal arguments for repealing Georgia’s abortion law following the Dobbs decision are now moot.

ACLU lawyers are now focusing on a provision of Georgia’s abortion law that confers “humanity” on embryos once cardiac activity is detected.

This measure could have a whole range of legal implications, such as parents being able to claim maintenance on an embryo or parents claiming maintenance on an embryo.

“This court should affirm the injunction against the personhood definition based on the district court’s independent finding of unconstitutional vagueness,” the attorneys wrote. “This injunction is unaffected by Dobbs, who has not addressed an allegation of vagueness.”

ACLU attorneys argue that the provisions on personhood are vague and argue that this particular part of the law should be abolished for two constitutional reasons:

First, they argue that clinics and physicians are given due procedural rights to practice their profession without fear of prosecution.

Second, they say the rules violate patients’ reproductive rights.

“By threatening criminal penalties for reproductive health care providers for providing routine obstetrical and gynecological care…thus deterring and delaying necessary diagnostic and treatment services for pregnant people…the definition of personhood forces those who reproduce to take unnecessary medical risk enter into,” write the lawyers.

Legal scholars say the court is likely to uphold Georgia’s abortion law, but the judges could only stop the law’s provisions on personality rights.

“Given the order of this panel, I suspect the state’s arguments will prevail,” Georgia State University professor Anthony Kreis wrote on Twitter. “The LIFE Act will be allowed[ed] come into force shortly. I give personality language a small but not inconsiderable chance of being banned by federal court.”

Once the 11th Circuit Panel decides, it will not end Georgia’s abortion law litigation. Abortion advocates plan to challenge the law in state courts, arguing that the Georgian constitution provides extensive privacy protections and that those rights are threatened by the restrictive abortion law.