By Maya T. Prabhu | Atlanta Journal-Constitution | October 1, 2019
A federal judge handed an early win to abortion rights activists Tuesday by blocking Georgia’s restrictive law from going into effect — but it is only the first step as a lawsuit makes its way through the court system.
District Judge Steve C. Jones’ ruling stops House Bill 481 from taking effect Jan. 1 while the case plays out. Anti-abortion activists are hoping the case winds up in the U.S. Supreme Court.
The American Civil Liberties Union of Georgia sued the state saying the law, which bans most abortions once a doctor can detect fetal cardiac activity, violates a woman’s constitutional right to abortion as established by the U.S. Supreme Court ruling in Roe v. Wade.
The new law would have outlawed abortions as early as six weeks into a pregnancy, before many women know they are pregnant.
Jones said the U.S. Supreme Court has “repeatedly and unequivocally” upheld Roe v. Wade, saying a state may not ban abortion before a fetus is viable — established in Roe as between 24 and 26 weeks of pregnancy.
“What is clearly defined, however, is that under no circumstances whatsoever may a state prohibit or ban abortions at any point prior to viability, no matter what interests the state asserts to support it,” Jones wrote. “By banning abortions after a fetal heartbeat is detected, HB 481 prohibits women from making the ultimate decision to terminate her pregnancy at a point before viability.”
ACLU of Georgia Legal Director Sean J. Young applauded Jones’ decision. The ACLU sued the state on behalf of the SisterSong Women of Color Reproductive Justice Collective, the Feminist Women’s Health Center, Planned Parenthood Southeast and other abortion rights advocates and providers.
“The federal district court today fulfilled its oath to uphold and defend the Constitution,” Young told The Atlanta Journal-Constitution. “This abortion ban has been unconstitutional from start to finish, and today is a victory for the dignity of women throughout Georgia.”
Gov. Brian Kemp backed the new law, and his office said it was reviewing Jones’ decision.
“Despite today’s outcome, we remain confident in our position,” Kemp spokeswoman Candice Broce said. “We will continue to fight for the unborn and work to ensure that all Georgians have the opportunity to live, grow and prosper.”
Joshua Edmonds, the executive director of the anti-abortion Georgia Life Alliance, said he is looking forward to the case making its way through the court system.
“This is yet another demonstration of judicial activism against an overwhelming majority of Georgians who support protecting innocent life,” Edmonds said. “We will continue to fight to prevent Planned Parenthood and the ACLU from turning back the clock on human rights in Georgia.”
Anti-abortion activists have seized upon the opportunity created by last year’s appointment of U.S. Supreme Court Justice Brett Kavanaugh, tilting the bench in the favor of conservatives.
There are already about 20 lawsuits involving abortion that the U.S. Supreme Court could consider that would challenge Roe v. Wade, but supporters of Georgia’s new law said they believe it is the one that will overturn the landmark ruling.
The ruling comes eight days after the ACLU argued in court that the law should not be allowed to go into effect.
Attorneys for the ACLU said the new law was essentially a ban on abortions, but lawyers for the state said the procedure still could be performed before cardiac activity is detected.
The ACLU also argued that the “personhood” components of the law were vague and made it difficult for their clients, abortion providers, to know when they would be in violation.
That language would have allowed parents, once a heartbeat is detected, to claim an embryo on their taxes as a dependent, and it would be counted toward the state’s population. Under the law, a court could also order a father to pay child support after a heartbeat is detected.
Jones wrote in his order that he agreed the language was too vague.
“HB 481 changes the definition of a natural person in Georgia, but defendants have been unable to point to any guidance for law enforcement or the judiciary on how to implement that change throughout the code,” Jones wrote.
In Georgia, later abortions would still have been allowed in cases of rape, incest, if the life of the woman is in danger or in instances of “medical futility,” when a fetus would not be able to survive after birth. To obtain an abortion after six weeks of pregnancy because of rape or incest, a woman would have had to to file a police report.
Under current Georgia law, passed by the Legislature in 2012, abortions are allowed through 20 weeks of gestation, or about 22 weeks of pregnancy.
At least 15 states have considered versions of fetal cardiac legislation this year.
Georgia’s law received national attention when many in the movie industry threatened to boycott filming in the state if the court allowed HB 481 to go into effect.
Governors in Kentucky, Mississippi and Ohio all have signed bills similar to Georgia’s. Federal judges have issued preliminary injunctions against laws in those states, and similar laws enacted in recent years in Iowa and North Dakota have also been struck down in the courts.
Staci Fox, the CEO and president of Planned Parenthood Southeast, called the order a “victory for the people of Georgia and the entire nation.”
“To Governor Kemp, we promised to see you in court, and we did,” Fox said. “But most importantly, to our patients, we promised to protect access to safe, legal abortion, and together we have.”