Texas regulation on abortion is totally different from Georgian regulation

Georgia’s “Heartbeat” law has a similar goal, but the way it is set up is inconsistent with what the Supreme Court was addressing with Texas law.

ATLANTA – This week’s Supreme Court ruling leaving Texas’ restrictive abortion law in effect for the time being is unlikely to affect the case of Georgia’s own “heartbeat” law, but it could inspire state lawmakers to adopt Texas strategy to copy, such a lawyer.

Georgia’s law, HB 481, is similar to Texas law in that it aims to ban abortion after a “fetal heartbeat” is detected, which usually lasts about six weeks and often before many women even realize they are pregnant.

But beyond that, they are very, very different.

On constitutional grounds, a federal judge ruled last year that Georgia’s law was clearly unconstitutional – Judge Steve C. Jones wrote in a ruling blocking the law that it “directly conflicts with binding Supreme Court precedents and thus the law on privacy and freedom violated “. secured by the fourteenth amendment. “

RELATED: No, the Texas Heartbeat Act doesn’t allow abortions in the event of rape or incest, but makes an exception when the mother’s life is in danger

How is this different from what goes on with Texas law? The binding Supreme Court precedent referred to in Judge Jones’ decision is Roe v Wade, who established the constitutional right to abortion. And from a technical point of view, the Texas Supreme Court decision doesn’t deal with Roe v. Wade or the constitutional virtues of abortion law.

It’s getting pretty complicated, but instead the split Supreme Court has left Texan law in place for the time being, saying the case “presents complex and novel … procedural issues”. They basically refused to act according to the law, either for or against, at this point because the way Texan law was constructed is highly unusual and essentially unprecedented.

The decision stated explicitly that “this order is not based on any conclusion about the constitutionality of Texas law”.

This is unlike Georgia, where a court has expressly ruled the law unconstitutional.

“What I think is important is that the Supreme Court has not checked whether (Texan law) is constitutional or not,” said 11Alive legal analyst Page Pate. “You will have to wait for a testing process to go through the appellate courts and eventually reach the Supreme Court to determine the final question of whether it is constitutional.”

In fact, in a way, the Supreme Court is waiting for the law to actually go into effect in Texas – which leads us to how Texan law works and how it differs significantly from Georgian law.

What Makes Texas Law Unique?

It’s made complicated on purpose, but more or less Texas has made it extremely difficult for a person or group to sue the law by rewriting how laws are normally enforced.

In Georgia, for example, if the “Heartbeat” law were in place and someone broke it, it would be criminally enforced by the state. This is how all laws work.

But what Texas did to their law is to prevent their own state officials from enforcing the law – instead, they created a system where ordinary people enforce it by getting an abortion provider or anyone who helps a woman to have an abortion to carry out, sue.

If they win – which the law is supposed to help them – they get $ 10,000. This is why it is likened to a “bounty” system.

And with that mechanism, Texas designed its law on purpose to make it impossible for anyone to sue the state to prevent them from enforcing the law – for not doing it.

Godfather explains the rough concept:

“So when you question the constitutionality of a new law like this, you usually sue the people who work for the state who are supposed to enforce it,” he said. “Well, they created a barrier to it because you can’t sue the state authorities for not enforcing the law, and I think the Chief Justice (John) Roberts was particularly concerned about that.”

Indeed, in assessing this workaround, how law enforcement normally works, Chief Justice Roberts wrote that “legal regulation … is not only unusual, it is unprecedented”.

Roberts concluded that the essence of Texan law was to evade scrutiny of its constitutional content.

“The desired consequence seems to be to release the state from the responsibility for the implementation and enforcement of the regulatory regime,” he wrote in his dissent.

Texas law raises an obvious constitutional question – if you can bypass normal constitutional boundaries by simply delegating the enforcement of your laws to individuals, what can you not do? For example, why can’t California ban the sale of guns by not preventing anyone from selling guns, but by making sure anyone can sue someone who sells guns for $ 10,000?

Pate doesn’t believe this is possible, and he believes any court that finally weighs the constitutional issue will come to the obvious conclusion that Texan law cannot be enforced this way.

“The problem is the way they wrote the law, the process they put in place, it has never been done before – I think at least some members of the court were concerned about this constitutionality,” he said. “Why did you do it? I don’t know the law is only in effect for a short time before it is repealed? Possibly being constitutional, don’t see how that can happen. “

How that relates to the situation in Georgia

All of this makes Texas law very different from Georgia, which was written more or less as “normal” law.

Georgia now has a court date this month, September 24th, to argue in the 11th District Court of Appeals why last year’s federal court ruling that banned the Heartbeat Act from going into effect is false. If the 11th district approves the federal judge, Georgia could then appeal to the Supreme Court.

If the Supreme Court approached the case at this point, it would examine the constitutionality of the law – and set the precedent set by Roe v. Calf.

RELATED: Yes, Individuals Are Enforcing Texan’s New Abortion Act and Could Earn $ 10,000

What is unlikely is that the 11th district will incorporate the Texas Supreme Court decision into its Georgia decision. The Supreme Court made it clear that the Texas ruling does not rule on the constitutionality of the abortion law, and that is exactly what the 11th District will consider when hearing the Georgia case.

Where the Supreme Court ruling in the Georgia Texas Texas case comes into play is that if, as it seems likely, the 11th District agrees that the “Heartbeat” law is unconstitutional, Georgia lawmakers in the meantime simply do one Could adopt copycat version of Texas law.

“Is it possible for our general assembly to come back early next year and change the law to reflect what it did in Texas? I bet there will be some people who will try to make that happen,” said Pate. “We may have a federal court ruling by then on the real issue of the constitutionality of the law itself, but if we don’t, you could see other states following the example of Texas.”

What’s next for Texas

When a court will challenge the constitutionality of Texas law depends on when a person is actually suing an abortion provider or other person who facilitated an abortion and trying to collect $ 10,000 under the new law.

At this point, an abortion provider like Planned Parenthood would argue in court that the law under which they are being sued is unconstitutional. That would most likely be done in a state court. (It’s also possible that a national organization like Planned Parenthood, under the concept of diversity jurisdiction, could try to try the lawsuit in federal court.)

Once this case is resolved, either party can appeal the judgment to a Texas Court of Appeals and then to the Texas Supreme Court.

Then it could find its way back to the US Supreme Court.