Georgia asks judge to dismiss lawsuit challenging ‘heartbeat’ law

Credit: Alyssa Pointer / AJC

Credit: Alyssa Pointer / AJC

Attorneys representing the state told a federal judge that Georgia’s new anti-abortion law is “constitutional and justified” and asked him to dismiss a lawsuit challenging the measure.

Filed in federal court Monday, attorneys representing the state said with House Bill 481 — which outlaws most abortions once a doctor can detect fetal cardiac activity — Georgia has an interest in "protecting the life of the unborn; promoting respect for life at all stages of pregnancy; protecting maternal health and safety; and safeguarding the ethics and integrity of the medical profession."

The American Civil Liberties Union of Georgia is suing the state over its new anti-abortion law on behalf of SisterSong Women of Color Reproductive Justice Collective and other abortion rights advocates and providers.

The new law could outlaw abortions as early as six weeks into a pregnancy, which is before many women know they are pregnant.

The ACLU also has asked U.S. District Judge Steve C. Jones to stop the law from going into effect while the case makes its way through the court system. A hearing on that request is scheduled for Sept. 23.

The state said granting a “preliminary injunction” was “unnecessary and premature.” Attorneys said they believed the entire case could be decided by scheduling a hearing on the merits of the lawsuit in early November.

“Although compressed, this schedule would be sufficient to develop the necessary record to finally dispose of this matter in court,” attorneys for the state wrote.

ACLU of Georgia legal director Sean J. Young said in a statement that he would respond to the state’s argument in a court filing.

The ACLU argued in its June complaint that the law violates a woman’s constitutional right of access to abortion until about 24 weeks of pregnancy, as established in the U.S. Supreme Court ruling in Roe v. Wade.

The ACLU has argued that “politicians should not be second-guessing women’s health care decisions.”

In its response, the state pushed back.

“Defendants deny all allegations in the complaint that killing a living unborn child constitutes ‘medical care’ or ‘health care,’” attorneys wrote.

The state hired Virginia-based attorney Jeffrey M. Harris with Consovoy McCarthy to represent Gov. Brian Kemp, Georgia Attorney General Chris Carr, Department of Public Health Commissioner Kathleen Toomey, members of the Georgia Composite Medical Board and its executive director.

Kemp in May signed into law HB 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.

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

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 ACLU also is suing the six district attorneys responsible for prosecuting crimes where the plaintiffs reside or operate their businesses. Of those, only district attorneys Sherry Boston of DeKalb County and Paul Howard of Fulton County had filed responses as of Monday.

Boston argued that since she has “publicly vowed” not to prosecute anyone under HB 481, she should be removed from the case. Howard said he supported the ACLU’s request to keep the law from going into effect in January.

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. At least 15 states have considered versions of “heartbeat” legislation in 2019.

Governors in Kentucky, Mississippi and Ohio all have signed similar “heartbeat bills.” Federal judges have already issued a preliminary injunction against laws in those three states, and similar laws enacted in recent years in Iowa and North Dakota have also been struck down in the courts.

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.

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.