by Jill Nolin, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
July 20, 2022

This story was updated on Wednesday, July 20, 2022 at 6:45 p.m.

Georgia’s ban on most abortions after around six weeks of pregnancy is now in effect after a three-judge panel ruled on Wednesday that the 2019 law can no longer be considered unconstitutional.

Wednesday’s ruling comes almost a month after the US Supreme Court ruled Roe v. Wade, leaving it up to states to decide whether to restrict access to abortion. The 11th Circuit Court of Appeals suspended its deliberations on Georgia’s anti-abortion law last year pending the Supreme Court’s decision on Mississippi’s 15-week ban.

The Supreme Court ruling “makes it clear that the Constitution does not give abortion a right, so Georgia can ban it,” Chief Justice William Pryor wrote.

The Georgian law, which has been suspended since 2020, also redefines the term “natural person” to include the provisions on unborn and other personalities. Wednesday’s decision dismissed claims that considering an unborn child a “natural person” was unconstitutionally vague.

“When we focus on the text, as we have to do, it is difficult to see blur,” the court’s statement said. “The law defines a natural person as including unborn human beings in the womb at any stage of development.”

But the judges conceded that applying the definition could be a different story. Georgian law also allows expectant parents to claim their unborn child as a dependent, requires the father to pay child support while the offspring is still in utero, and considers an unborn child a “natural person”.

“Of course, there could be vague applications of this definition in other provisions of the Georgia Code,” Pryor wrote. But any argument that an application of the law violates constitutional rights – such as a doctor’s right to continue his work caring for pregnant patients free from undue government interference – should be made “as is”.

While anti-abortion activists hailed the verdict, opponents of the law signaled on Wednesday that such constitutional challenges to certain Georgian laws affected by the new definition of a “natural person” could be pursued.

“The ACLU of Georgia will continue to fight for abortion rights for Georgia women to the best of our ability,” said Andrea Young, executive director of the ACLU of Georgia, which represents the abortion providers challenging the law. “At the same time, voters in Georgia have the opportunity to vote out politicians who oppose a woman’s right to choose when, if and with whom she wants to have a family.”

The ACLU and the abortion rights group, including Planned Parenthood Southeast, had expected the law to go into effect this summer. They blew up the court’s order that the law go into effect immediately.

“This is a highly unorthodox measure that will make necessary abortion treatment immediately unattainable for patients beyond the earliest stages of pregnancy,” the groups said in a joint statement.

“Across the state, providers are now being forced to turn away patients who thought they had access to an abortion, immediately changing the course of their lives and their future. This is awful. We will continue to do everything in our power to fight for access to abortion in Georgia in the face of these damaging attacks on people’s ability to control if and when they have children.”

The law prohibits abortions once fetal heart activity is detected, which is usually around six weeks and many women are unaware that they are pregnant. It only allows a few narrow exceptions: in the case of incest, rape or when a woman’s life is in danger.

District Judge Barbara Lagoa and Judge Harvey Schlesinger were also members of the panel that ruled on the state’s appeal.

Following the June judgment in which Roe v. Wade was overturned, the 11th Circuit immediately ordered both sides of the case to file briefs on what the Supreme Court ruling means for the state’s appeal. Those briefs were filed late Friday, with the state arguing the plaintiffs had “no case” following the Supreme Court ruling. The ACLU had further argued that the civil status requirements were too vague.

“It is the constitutional duty of the Attorney General of Georgia to defend the laws of our state,” Attorney General Chris Carr said in a statement. “Today our arguments prevailed, meaning the Eleventh Circuit Court allowed Georgia’s LIFE Act to go into effect immediately.”

Effects on the ballot box

The lingering fallout from the Supreme Court’s decision to end five decades of protections for abortion rights is likely to be a dominant theme at this year’s Midterms, even as Georgia Republicans try to keep the focus on the economy and national politics.

Republican Gov. Brian Kemp was quick to issue a video statement in which he could be seen with his wife, Marty, by his side. Kemp celebrated Wednesday’s ruling but also tried to highlight efforts to improve supportive services for women and children, such as a bill this year that extends postpartum Medicaid coverage for mothers from six months to a year. Georgia struggles with a high maternal mortality rate.

“We will continue this important work in the coming days and months,” Kemp said.

Democratic opponents of Republican incumbents, who either helped push through the anti-abortion law or fought the measure in court, immediately berated their opponents. They point to polls showing broad support for Roe v. Wade showed.

“The fact of the matter is that forced pregnancies are now state law in Georgia,” Abrams said in a video statement of his own. “The draconian abortion ban signed into law by the current governor in 2019 makes it a crime to seek an abortion after six weeks of pregnancy. Georgia women will lose their right to vote before most even know they are pregnant due to the governor’s callous decision to prioritize his policies over the needs of women in healthcare.”

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