DIGGING DEEPER: Could Georgia abortion law challenge Roe v. Wade?

Kemp expected to sign bill in coming days

It’s just a matter of time before Gov. Brian Kemp signs into law a Georgia bill that essentially bans abortions after six weeks of pregnancy. It’s also just a matter of time before a federal judge declares it unconstitutional.

Even supporters of the proposed law, one of the nation’s strictest anti-abortion measures, concede they don’t expect victories in the lower courts. That’s because of the precedent set by Roe v. Wade, the 1973 U.S. Supreme Court ruling that allows women to have abortions until a fetus is viable outside the mother, generally considered to be about 24 weeks into pregnancy.


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Instead, all eyes are on the nation’s highest court, which is now more conservative than it has been in decades. And some are wondering if Georgia’s law could be the one that puts Roe to the test, deciding whether abortions will be available for a new generation.

Two of the Supreme Court’s most recent members, Neil Gorsuch and Brett Kavanaugh, were put there by President Donald Trump who vowed to nominate “pro-life justices” during the 2016 campaign. For this reason, conservative lawmakers are no longer trying to just chip away the privacy protections provided by Roe v. Wade; they are going for the jugular, seeking to upend the precedent altogether.

“With the recent changes on the Supreme Court, states that are hostile to abortion see this as a moment in time when they can pass blatantly unconstitutional laws,” said Elisabeth Smith, the Center for Reproductive Rights’ chief counsel for state policy. “Then they hope litigation will ensue and it will get to the Supreme Court.”

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Emily Matson, general counsel for the Georgia Life Alliance, agreed that anti-abortion groups sense an opportunity. “Definitely the current makeup of the court is a consideration whether our desire for (Roe v. Wade) to be revisited is timely,” she said.

There is little drama surrounding what Kemp will do. Following the contentious debate over House Bill 481, Georgia's new governor threw his support behind the measure.

"Georgia values life," Kemp said. "We stand up for the innocent and speak for those who cannot speak for themselves. The legislature's bold action reaffirms our priorities and who we are as a state."

A demonstrator holds up a sign in support of pro-life rights outside the U.S. Supreme Court in Washington on March 2, 2016.

Credit: Andrew Harrer

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Credit: Andrew Harrer

Currently, Georgia law bans abortions after 20 weeks of pregnancy. The new legislation would outlaw abortions once a doctor detects a heartbeat in the womb — which is usually at about six weeks into a pregnancy and before most women know they are pregnant.

Kemp has until May 12 to either sign or veto bills from the current legislative session. The legislation won’t take effect until the beginning of next year, so it’s unclear how soon a lawsuit will be filed to challenge it. But it’s going to happen.

“The ACLU of Georgia will see the governor in court,” Sean Young, the organization’s legal director, said. “Make no mistake, this law is an abortion ban.”

So far this year, "heartbeat" bills have been introduced in 15 states. Three of them — in Mississippi, Ohio and Kentucky — have been signed into law.

A federal judge has already blocked Kentucky's law. Similar laws enacted in recent years in North Dakota and Iowa have also been struck down in the federal courtswhere all the challenges are being litigated.

But Georgia’s law is quite distinct when compared to those in other states. It makes a fetus, once a heartbeat is detected, a “natural person,” which also means “a human being.”

Under the legislation, any “unborn children” with a detectable heartbeat must be included in the state’s population. They also trigger child support and alimony obligations and can be named as dependents in tax filings. They can recover damages in civil lawsuits filed on their behalf.

The law exposes the mother to criminal prosecution, as well as the doctor who performs the abortion, the nurse who assists in one and a pharmacist who prescribes medication that terminates a pregnancy. (It grants exceptions to situations where the health or livelihood of the mother is at stake and for “the accidental or unintentional injury to or death of an unborn child.”)

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Some district attorneys in the state have wondered if mothers, doctors, nurses and pharmacists could be subject to a murder prosecution under the law. But the bill's sponsor, Rep. Ed Setzler, R-Acworth, said that would not be the case. Instead, they would be subject to a "criminal abortion" charge and face a maximum of 10 years in prison.

Setzler also said he believes establishing “the personhood of an unborn child” strengthens the chances of the law — formally named the Living Infants Fairness and Equality (LIFE) Act — surviving a constitutional challenge.

“The LIFE Act recognizes what science has told us for centuries: that the presence of a sustained heartbeat is the threshold for establishing life,” Setzler said.

Rep. Ed Setzler (left), sponsor of the “heartbeat” anti-abortion bill likely to be signed into law by the governor, speaks with Rep. Kevin Cooke in the House chamber during the recent General Assembly. HYOSUB SHIN / HSHIN@AJC.COM

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“States have always been able to recognize fundamental rights more generously than the minimum standard required by the U.S. Constitution,” he added. “That’s what the LIFE Act does, it extends constitutional protections available to all ‘persons’ to include unborn children.”

Setzler pointed to what Justice Harry Blackmun wrote when he authored the majority opinion in Roe v. Wade. The late justice noted that those who opposed abortion argued that the fetus is a “person” and entitled to equal protection of the law under the Fourteenth Amendment.

“If this suggestion of personhood is established,” the case for abortion “collapses,” Blackmun wrote. That’s because the fetus’ “right to life would then be guaranteed specifically by the (Fourteenth) Amendment.”

Whether House Bill 481 achieves this goal remains to be seen. It may be a decision the Supreme Court will have to make, if it chooses to decide the constitutionality of Georgia’s new statute.

March 29, 2019 Atlanta - Pro-Choice demonstrators stand in the hallway during the 38th day of legislation in the House Chambers at the Georgia State Capitol on Friday, March 29, 2019. The Georgia House narrowly voted 92-78 to approve legislation that would outlaw most abortions once a doctor can detect a heartbeat in the womb. HYOSUB SHIN / HSHIN@AJC.COM


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Matson, the general counsel for the Georgia Life Alliance, said she thinks this could happen.

“Our perspective now is that the legal precedent of those standards is on shifting sand,” Matson said. “These things have so evolved that the law is demanding a revision and a more definitive statement of when this is a human life meriting legal protection. It might be tied to the fact that the determination of a pregnancy occurs earlier today.”

The ACLU of Georgia couldn’t disagree more, said its legal director.

“This law is blatantly unconstitutional,” Young said, calling it “part of a nationwide assault on women’s freedom to make their own healthcare decisions.”

Because of its potential criminal punishment, the law may have calamitous, unintended consequences, he added.

“Women who want to carry their pregnancies to term may not get the healthcare they need because their local doctors are afraid to go to prison if their healthcare happens to result in the loss of an embryo,” Young said. “Can a pharmacist go to prison for dispensing medication that creates a risk to pregnant women? If so, they might be reluctant to do dispense necessary medicine due to any risk to the pregnancy.”

Young expressed confidence the “heartbeat” bills being enacted into law will not survive judicial scrutiny.

“Every federal court that has heard a challenge to these kinds of abortion bans have struck them down,” he said. “Judges have a duty to follow the law and we’re confident the federal courts will follow 50 years of Supreme Court precedent.”

The 11th U.S. Circuit Court of Appeals in Atlanta. (Bob Andres/AJC)

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Such was the case last year involving the federal appeals court in AtlantaIn August, a three-judge panel of the 11th U.S. Circuit Court of Appeals struck down an Alabama law that would have allowed prosecutions of doctors who performed "dilation and evacuation," a commonly used procedure for second-trimester abortions. The 11th Circuit, which hears cases from Georgia, Florida and Alabama, is considered one of the more conservative appellate courts in the nation. And the ruling was not without its controversy.

Joel Dubina, one of the three judges who voted to overturn that abortion ban, wrote in a concurring opinion that he believes Roe v. Wade has no basis in the Constitution.

Then he added: “I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”

Even if a number of federal appeals courts strike down the various “heartbeat” laws, the Supreme Court may still decline to consider challenges filed by various states, including Georgia, said Robert Schapiro, an Emory University constitutional law professor.

“I think if the court is going to revisit Roe v. Wade, it would do so more incrementally, with laws that limit but do not fundamentally undue the right to abortion,” Schapiro said. “Yet of course, anything’s possible.”