Georgia abortion law challenge now focuses on ‘personality’

ATLANTA (AP) — Georgia state attorneys are asking a federal appeals court to let the state’s 2019 abortion law go into effect after the U.S. Supreme Court ruled that there is no constitutional right to abortion.

In a case outside of Mississippi, on June 24 the Supreme Court ruled in the landmark Roe v. Wade in 1973, which had protected abortion rights. Because the groups challenging Georgia’s law relied on that precedent, “they don’t have a case now,” state attorneys wrote in a letter filed with the U.S. 11th Circuit Court on Friday.

Lawyers for groups challenging the law conceded that the ruling gives effect to the state’s ban on many abortions. But they argued in their brief that a provision conferring “humanity” on a fetus should remain blocked.

Georgia law prohibits most abortions once a “detectable human heartbeat” is present. Heart activity can be detected by ultrasound in cells within an embryo, which eventually becomes the heart as early as the sixth week of pregnancy, before many women realize they are pregnant.

Georgian law contains exceptions for rape and incest as long as a police report is filed. It also provides for later abortions when the mother’s life is in danger or a fetus is no longer viable due to a serious medical condition.

Personality determination gives a fetus the same legal rights as humans after birth.

A federal judge in 2020 found Georgia’s law unconstitutional, based on precedent that had stood for nearly 50 years. The state appealed this decision. A three-judge panel of the 11th federal court said in September it would wait until the Supreme Court ruled on the Mississippi case before deciding on the Georgia appeal.

Hours after the Supreme Court ruled in the case, prosecutors asked the 11th federal district to allow Georgia’s law to go into effect. The 11th Circuit gave attorneys on both sides three weeks to file briefs explaining how the Supreme Court ruling affects Georgia’s appeal. That appointment was on Friday.

Prosecutors wrote in their brief that the Court of Appeals should reverse the lower court’s decision and lift the injunction that had prevented the law from going into effect.

Attorneys from the American Civil Liberties Union, Planned Parenthood and the Center for Reproductive Rights, who filed the lawsuit challenging the law on behalf of Georgia abortion providers, and an advocacy group acknowledged in their brief that the Supreme Court ruling exceeded the intended limits for Abortion is legal in the 2019 law. However, they argued that the personhood provision was unconstitutionally vague and should remain blocked.

State attorneys argue that the civil status rule would support families before a child is born. They point out that it would extend child support obligations to include medical and pregnancy-related expenses, and would allow parents to claim a fetus as a dependent for state income tax purposes. They reject arguments that it is unconstitutionally vague.

However, the lawyers challenging the law argue that the vagueness of personal protection regulations creates uncertainty for doctors, who may be reluctant to provide critical medical care to pregnant patients for fear of criminal prosecution. And that could result in delayed diagnosis and treatment services for patients, the letter said.

They cited a ruling by a federal judge in Arizona earlier this month blocking a personality law there, saying it was unconstitutionally vague. The judge wrote that if the law were to go into effect, “everyone would guess” what criminal laws abortion providers might be breaking when they perform otherwise legal abortions.