Georgia abortion providers file lawsuit challenging ‘heartbeat’ law

Opponents of Georgia’s new “heartbeat” law on Friday began what is expected to be a lengthy court battle when they filed a lawsuit challenging the measure — setting the case on a path that the anti-abortion measure’s supporters hope will lead to a reversal of Roe v. Wade.

The American Civil Liberties Union of Georgia argues in the suit that the law violates a woman’s constitutional right to access abortion until about 24 weeks of pregnancy, as established in the U.S. Supreme Court’s 1973 ruling.

Gov. Brian Kemp in May signed into law House Bill 481, which outlaws most abortions once a doctor can detect fetal cardiac activity — usually at about six weeks of pregnancy and before many women know they are pregnant.

State Attorney General Chris Carr's office said it is reviewing the complaint and declined to comment on pending litigation. The case has been assigned to U.S. District Judge Steve C. Jones.

Any ruling in the case would almost certainly be appealed and the case could take years to work its way to the U.S. Supreme Court.

The law is scheduled to go into effect Jan. 1. Current Georgia law, passed by the Legislature in 2012, allows abortions through 20 weeks of pregnancy.

But the ACLU — on behalf of the Atlanta-based nonprofit advocacy group SisterSong Women of Color Reproductive Justice Collective and several abortion providers — says Georgia’s new law is unconstitutional, and it’s asking a judge to stop the measure from going into effect.

CONTINUING COVERAGE | Georgia, Alabama ban laws will land in Atlanta appeals court

DIGGING DEEPER | Who could be prosecuted under Georgia's 'heartbeat' law?

“HB 481 is blatantly unconstitutional under 50 years of Supreme Court precedent,” ACLU attorney Sean Young told The Atlanta Journal-Constitution. “Politicians have no right telling women or couples when to start or expand a family. Politicians should not be second-guessing women’s health care decisions.”

ACLU Executive Director Andrea Young — who is not related to Sean Young — said access to abortion plays an important role in allowing women to excel in education and their careers.

“Roe versus Wade is critical for women to continue to participate in society the way we do,” Andrea Young said. “We have to protect individuals’ right to make the decision that is best for them and their life and their family.”

When signing the bill, Kemp said the law aimed to protect all life and “ensure all Georgians have the opportunity to live, grow, learn and prosper.”

Shortly after the lawsuit was filed, state Rep. Ed Setzler, an Acworth Republican who sponsored the legislation, said on Twitter he was sad to see SisterSong leading the challenge.

"Living Infants Fairness & Equality Act #HB481 protects helpless unborn children from a violent death and recognizes the human rights they deserve," he wrote. "With 19 million black children killed since 1973, I'm sad that SisterSong is suing to continue the killing."

During a press conference Friday announcing the lawsuit, SisterSong Executive Director Monica Simpson stressed the need for women to have the ability to make decisions about their bodies.

Monica Simpson, executive director of SisterSong, speaks at a press conference following the American Civil Liberties Union, the ACLU of Georgia, the Center for Reproductive Rights, and Planned Parenthood filing of a lawsuit challenging Georgia's HB 41, the 'heartbeat bill,' on the steps of the Richard B. Russell Federal Building, on Ted Turner Drive SW in Atlanta, on Friday, June 28, 2019. The 'heartbeat bill' set to take effect on January 1, 2020. The law bans abortion as early as six weeks into pregnancy, before many people even know they are pregnant. Supporters of the measure hope the law will serve as a test case that will rise to the U.S. Supreme Court and challenge Roe v. Wade. Legal experts expect a judge to issue a preliminary injunction to keep the law from going into effect until the case is settled by the courts.

Credit: Christina Matacotta

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Credit: Christina Matacotta

“As a black woman who has grown up and lived her entire life in the South, we do not want to return to a day where the state has control of our bodies,” Simpson said.

In the complaint, attorneys for SisterSong, the Feminist Women’s Health Center, Planned Parenthood Southeast and several private abortion clinics and providers called the law an “affront to the dignity and health of Georgians.”

They are suing Kemp, state Attorney General Chris Carr, Department of Public Health Commissioner Kathleen Toomey, members of the Georgia Composite Medical Board and its executive director, and the six district attorneys responsible for prosecuting crimes where the plaintiffs reside or operate their businesses.

“The decision to terminate a pregnancy is motivated by a constellation of diverse, complex and interrelated factors, intimately related to the individual’s core religious beliefs, values and family circumstances,” lawyers said in the complaint.

Attorneys said if the law is allowed to go into effect, it will force clinics and doctors to turn away patients “in need of banned care.”

“Their patients would suffer the irreparable harm of gross violations of their constitutional rights, assault to their dignity and the unconscionable imposition of risks to their health and lives,” the lawyers said.

Cole Muzio, executive director with Family Policy Alliance of Georgia, said he’s confident that HB 481 will stand up to court scrutiny.

Andrea Young, executive director of ACLU of Georgia, speaks during an pro-choice rally outside the state Capitol following Gov. Brian Kemp’s signing of HB 481 in Atlanta in May. ALYSSA POINTER/ALYSSA.POINTER@AJC.COM

Credit: Alyssa Pointer

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Credit: Alyssa Pointer

“Our hope is that the judicial system will end an era of tyranny and allow our state to protect its citizens, and our commitment is to keep waging the political and policy fight to ensure a Georgia where all life — regardless of location, stage of development, ability to speak, or connection to power — is cherished,” he said.

Georgia’s law is one of several that have moved through Republican-run state governments across the country with the express purpose of challenging Roe v. Wade.

Anti-abortion activists have seized upon the opportunity created after the appointment of U.S. Supreme Court Justice Brett Kavanaugh last year, tilting the bench in the favor of conservatives. As a lower court judge, Kavanaugh opposed a ruling by the U.S. Court of Appeals that permitted a 17-year-old immigrant living in the U.S. illegally to seek an abortion while she was being held in a Texas detention facility.

At least 15 states are considering versions of “heartbeat” legislation in 2019.

Governors in Kentucky, Mississippi and Ohio all have signed similar “heartbeat bills.” A federal judge has already issued a preliminary injunction against laws in Kentucky and Mississippi, and similar laws enacted in recent years in Iowa and North Dakota have also been struck down in the courts.

Alabama’s governor signed an even stricter law that makes it a felony to perform abortions in almost all cases. Abortions could be performed only if the woman’s life is at risk. Alabama’s law is scheduled to go into effect in November.

"HB 481 is blatantly unconstitutional under 50 years of Supreme Court precedent. Politicians have no right telling women or couples when to start or expand a family. Politicians should not be second-guessing women's health care decisions." —Sean Young, ACLU attorney

In Georgia, later abortions still are 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 to file a police report.

The Georgia law includes what many supporters call “personhood” language, which extends legal rights to fertilized eggs.

It allows 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. A court can also order a father to pay child support after a heartbeat is detected.

What defines a heartbeat is at the center of dispute. Supporters say it should be used to establish when life begins. Doctors who oppose the law, however, said what appears to be a heartbeat at six weeks signals the practice motions of developing tissues that could not on their own power a fetus without the mother.

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

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.

Sean Young said he disagrees.

“Georgia politicians, in an attempt to legally justify the abortion ban, sought to redefine the concept of personhood,” he said. “Politicians, however, cannot rewrite the Constitution, which clearly protects a woman’s right to make her own health care decisions regardless of a politicians religious beliefs.”

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