While the new Georgia and Alabama abortion-ban statutes have striking differences, they also have one thing very much in common: Challenges against both will land at the federal appeals court in Atlanta.
Last year, the 11th U.S. Circuit Court of Appeals issued a notable opinion in a high-profile abortion case out of Alabama. And while the court followed the U.S. Supreme Court's precedent of Roe v. Wade, its ruling caught the attention of most everyone who closely follows abortion litigation.
After the 11th Circuit determines whether Georgia’s and Alabama’s abortion laws are constitutional, its decisions are certain to be appealed to the Supreme Court, perhaps as soon as sometime late next year.
Alabama's law, which makes it a felony for a doctor to perform an abortion at any stage of a pregnancy unless the mother's health is at risk, is already under attack. A recently filed lawsuit seeks to strike down Alabama's law, which is to take effect on Nov. 15.
It's just a matter of time before Georgia's law, which takes effect on Jan. 1, will face a legal challenge.
“The lawsuit is coming soon,” said Sean Young, legal director of the American Civil Liberties Union of Georgia. He expressed confidence that the U.S. District Court judge who gets the case will follow Supreme Court precedent and declare the law unconstitutional.
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Katie Byrd, communications director for state Attorney General Chris Carr, said her office’s constitutional duty is to defend the state’s laws. “House Bill 481 was passed by Georgia’s duly elected General Assembly and signed into law by the governor, and our office will defend this law,” she said.
Once a district court judge rules, the next stop will be the 11th Circuit, which oversees cases out of Georgia, Alabama and Florida. The 12-member court has six judges appointed by Republican presidents and six appointed by Democratic presidents. It typically assigns three-judge panels to decide its appeals.
Over the past few decades, the 11th Circuit has heard a number of sensational cases, such as one facet of litigation involving the hotly disputed 2000 presidential election, a challenge to President Barack Obama's health care law and the tri-state water wars dispute. But the abortion cases could become quite a spectacle, with protests and demonstrations outside the imposing Elbert Parr Tuttle courthouse in downtown Atlanta.
“Because it’s such a divisive issue, I’d be surprised if there wasn’t a need for added security when the cases are argued,” said Buford attorney Kevin Morris, who closely follows the 11th Circuit.
Depending on the timing of the appeals, it’s possible the appeals court will choose to consider Georgia’s and Alabama’s laws together, Morris said. He also estimated it would take the court about 10 months to decide the case once it dockets one or both of the appeals.
So far this year, governors in Kentucky, Mississippi and Ohio have signed “heartbeat” laws that are somewhat similar to Georgia’s. And federal judges in Kentucky and Mississippi have already blocked those two states from enforcing their new laws.
Supporters of the new anti-abortion laws are not expecting victories in the lower courts. They are hoping the Supreme Court agrees to hear one or more of them and uses the opportunity to overturn Roe v. Wade. That’s essentially what Gov. Kay Ivey said after she recently signed Alabama’s bill into law.
“As citizens of this great country, we must always respect the authority of the U.S. Supreme Court even when we disagree with their decisions,” Ivey said. “Many Americans, myself included, disagreed when Roe v. Wade was handed down in 1973. The sponsors of this bill believe that it is time, once again, for the U.S. Supreme Court to revisit this important matter, and they believe this act may bring about the best opportunity for this to occur.”
Three abortion clinics and an obstetrician who performs abortions at a women's center in Huntsville are among those challenging the Alabama law. Their suit, brought by the ACLU of Alabama and Planned Parenthood, says in the 46 years since the Supreme Court decided Roe v. Wade, U.S. courts have recognized the constitutional right of a woman to decide whether to terminate her pregnancy.
“The U.S. Supreme Court has repeatedly recognized that this right is central to obtaining equality and respecting the dignity, autonomy and bodily integrity of all individuals,” the suit said.
The case has been assigned to U.S. District Judge Myron Thompson in Montgomery, who authored a ruling in the most recent high-profile abortion case to be heard by the 11th Circuit.
In 2017, Thompson struck down Alabama's so-called "fetal demise law," which would have allowed criminal prosecutions of doctors who performed a commonly used procedure for second-trimester abortions.
Alabama appealed to the 11th Circuit and the case was heard by a three-judge panel. In a unanimous decision, two judges in the court's majority begrudgingly upheld Thompson's ruling.
Chief Judge Ed Carnes, who wrote the majority opinion, seized the opportunity to take a swipe at Roe v. Wade by citing justices who had criticized the Supreme Court’s abortion decisions.
“Some Supreme Court justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion,” Carnes wrote. “If so, what we must apply here is the aberration.”
In closing, Carnes, an appointee of President George H.W. Bush, said his job was to apply the law laid down by the U.S. Supreme Court to the facts of the “fetal demise” law.
“In our judicial system, there is only one Supreme Court, and we are not it,” Carnes wrote. “As one of the ‘inferior courts,’ we follow its decisions.”
In a concurring opinion, Senior Judge Joel Dubina, also appointed by Bush, minced no words. He wrote that he believed Roe v. Wade has no basis in the Constitution.
“The problem I have,” he added, “is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”
Randall Marshall, executive director of the ACLU of Alabama, said the 11th Circuit judges’ musings in the “fetal demise” case gave him pause. “But the clear message was that they were going to follow the law,” he said.
Alabama has appealed the 11th Circuit’s ruling in that case to the U.S. Supreme Court, which has yet to decide whether it will hear it.
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