Two of the three judges said they believed that some of the incidental provisions of Georgia’s “Heartbeat” law could be met.
ATLANTA – Justices on the Atlanta federal appeals court signaled Friday that they will wait to see how the US Supreme Court will rule on an impending challenge to Roe against Wade of Mississippi before deciding on the fate of Georgia’s “heartbeat” abortion law.
However, judges in the 11th District Court of Appeals also indicated that regardless of the outcome of the follow-up Mississippi case, they could determine that portions of Georgian law could be upheld beyond core restrictions on abortion.
Georgia’s law, which bans abortion from the time a doctor can detect a “fetal heartbeat,” usually about six weeks and often before many women even realize they are pregnant, was ruled unconstitutional by a federal judge last year .
In the appeal hearing on Friday, all parties agreed almost universally that the 11th district does not have to weigh up this fundamental matter, restricting abortion on December 1st
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“You both say you have no problem with that,” said 11th district chief judge William H. Pryor, referring to seeing what the Supreme Court does. “Don’t you agree that we should really do that? We cannot allow the Supreme Court to do something for us every day. It’s nice when it happens.
In addition, lawyers in the Georgia case, SisterSong v. Kemp, on whether certain pieces of legislation – such as a tax credit granting pregnant mothers and another providing for the support of absent fathers to expectant mothers – could be called into question.
The federal court ruled last year that the portions of Georgia law that do not specifically restrict abortion are nonetheless bound by a key provision of the law that redefines an “individual” to include unborn children – fetuses and embryos.
Elizabeth Watson, attorney for SisterSong – a group on the reproductive rights of women with color – reiterated this judgment, arguing that Georgia law should “legally recognize fetuses and embryos by declaring them to be persons” beyond federal law, it was the district court’s right to block it entirely.
She argued that while there may be some provisions of the law that would be constitutional on their own, that does not necessarily mean that they can be separated from the broader purpose of the law.
“You cannot enforce constitutional provisions under an unconstitutional law,” said Watson. “The state has explained its purpose to us and it should recognize fetuses and embryos as persons more comprehensively than the federal law provides.”
However, she faced significant setbacks as Judge Pryor and Judge Barbara Lagoa apparently disagreed on whether parts of the law could exist.
“How is it unconstitutional for a father to have to pay the cost of a pregnancy for which he is partly responsible?” asked Judge Lagoa.
“Your Honor, if this provision had been made in isolation from the rest of this law, it could be constitutional,” Watson replied before Judge Pryor cut it off.
“Well, that sounds like it’s separable,” he said, referring to the severability law, which allows parts of a law to remain intact even when other parts of it are repealed.
Later, speaking to Georgia state attorney Jeffrey Harris, Judge Pryor said, “The fact (the law) has in some ways an anti-abortion purpose, doesn’t make it unconstitutional, does it?”
“Of course,” agreed Harris.
