“The question presented, as I understand it in Dobbs, no matter which way the Supreme Court answers it — affirmatively or negatively — it seems to me that it’s going to bear directly on the correct outcome of this controversy,” Pryor said.
The three-judge panel heard arguments on the constitutionality of Georgia’s 2019 abortion law, which bans the procedure after a doctor can detect fetal cardiac activity — typically about six weeks into a pregnancy and before many women know they are pregnant.
If the Supreme Court rules in favor of allowing the Mississippi law to take effect, attorneys in Georgia may need to file additional documents to support their arguments.
The American Civil Liberties Union of Georgia, on behalf of the abortion rights group SisterSong Women of Color Reproductive Justice and several abortion providers, sued Gov. Brian Kemp and other state officials in 2019. A federal district judge struck down the law in 2020, blocking it from taking effect, and the state filed its appeal shortly after the ruling.
Pryor said standards set by previous Supreme Court rulings, including the landmark 1973 decision in Roe v. Wade, have established a woman’s constitutional right to access to the procedure without “undue burden.”
“The question is whether the regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” Pryor said to the state’s lawyers. “It seems to me that, at least based on the stipulated record, you (the state) couldn’t possibly win.”
But the judges said other parts of the Georgia law could be allowed to take effect even if they also ruled to strike down the ban on abortions.
Georgia’s law includes what many supporters call “personhood” language, which would extend legal rights to fertilized eggs. Those provisions would allow parents to claim a fetus, once fetal cardiac activity is detected, on their state taxes as a dependent, collect child support from the father and require state officials to count an unborn child toward Georgia’s population.
Attorneys for SisterSong argued that the language addressing “personhood” in the law was unconstitutionally vague and should not be allowed to take effect on its own.
“How is it unconstitutional to make a father pay for the cost of a pregnancy?” Judge Barbara Lagoa asked.
Jeffery Harris, an attorney representing the state, said prior court decisions let parts of laws go into effect even if judges rule against one section.
“The purpose of the act is to promote the well-being of the unborn. That’s obviously what these provisions do,” Harris said.
Arguing for SisterSong, attorney Elizabeth Watson said she did not believe the “personhood” provisions of the law could stand on their own.
“The state lacks the power to provide full legal recognition of fetuses and embryos above the minimum requirements of federal law in this way,” she said. “Under these circumstances, both state and federal law dictate that (Georgia’s law) be enjoined in its entirety.”
Over the past decade, the 11th Circuit — which has jurisdiction over federal appeals from Georgia, Alabama and Florida — has become decidedly conservative, because then-President Donald Trump, who called for the overturning of Roe v. Wade, appointed six of its 12 judges to the bench.
In Friday’s abortion case, all the judges were appointed by Republican presidents. Two of them were among Trump’s finalists in filling U.S. Supreme Court vacancies: Pryor, appointed by President George W. Bush, and Lagoa, a Trump appointee.
The third judge on the panel, Harvey Schlesinger, a senior U.S. district judge from Jacksonville, Florida, was appointed by President George H.W. Bush.
In recent years, the 11th Circuit has ruled on two controversial abortion statutes. The court struck down both, but in one decision, two of the court’s more conservative members made it clear they disagreed with the outcome.
It’s unclear when the appeals court will issue a ruling on the case. If judges decide to wait until the Supreme Court rules on the Mississippi case, it could be as late as next summer.
“However long it takes for the court to issue its decision, Georgia’s abortion ban remains blocked so abortion remains safe and legal,” said Sean Young, an attorney with the ACLU of Georgia.
Staff writer Bill Rankin contributed to this article.