Georgia abortion law challenge now focuses on ‘personality’

ATLANTE — Georgia state lawyers have urged a federal appeals court to allow the abortion law of 2019 to take effect now that the US Supreme Court has ruled there is no no constitutional right to abortion.

Ruling in a case out of Mississippi, the Supreme Court on June 24 overturned the landmark 1973 Roe v. Wade, who had protected the right to abortion. Because groups challenging Georgia’s law relied on that precedent, they “have no more cases,” state attorneys wrote in a brief submitted Friday to the 11th U.S. Circuit Court of Appeals.

Lawyers for groups challenging the law have acknowledged that the ruling allows the state’s ban on many abortions to take effect. But they argued in their brief that a provision that grants “personality” to a fetus should remain blocked.

Georgia law prohibits most abortions once a “detectable human heartbeat” is present. Cardiac activity can be detected by ultrasound in the cells of an embryo that will eventually become the heart as early as the sixth week of pregnancy, before many women realize they are pregnant.

Georgia law includes exceptions for rape and incest, provided a police report is filed. It also provides for subsequent abortions when the mother’s life is in danger or a serious medical condition renders a fetus non-viable.

The personality provision gives the fetus the same legal rights that people have after birth.

In 2020, a federal judge found the Georgia law to be unconstitutional based on precedent that had stood for nearly 50 years. The state appealed this decision. A three-judge 11th Circuit panel said in September it would wait to rule on Georgia’s appeal until the Supreme Court rules on the Mississippi case.

Hours after the Supreme Court’s decision in that case, state attorneys petitioned the 11th Circuit to allow the Georgia law to go into effect. The 11th Circuit has given attorneys on each side three weeks to submit briefs explaining how the Supreme Court’s decision affects Georgia’s appeal. That deadline was Friday.

State attorneys wrote in their brief that the appeals court should reverse the lower court’s decision and lift the injunction that had prevented the law from going into effect.

Lawyers for the American Civil Liberties Union, Planned Parenthood and the Center for Reproductive Rights who filed a lawsuit challenging the law on behalf of Georgia abortion providers and an advocacy group acknowledged in their brief that the Supreme Court ruling allows limits on scheduled abortions in the 2019 law. But they argued that the personhood provision is unconstitutionally vague and should remain blocked.

State attorneys argue that the personality provision would support families before a child is born. They note that it would expand child support obligations to include medical and pregnancy-related expenses and allow parents to claim a fetus as a dependent for state income tax purposes. They reject arguments that it is unconstitutionally vague.

But lawyers challenging the law argue that the character provision’s vagueness creates uncertainty for doctors who may be reluctant to provide critical medical care to pregnant patients for fear of being sued. And that could lead to delays in diagnostic and treatment services for patients, the brief says.

They cited a ruling by a federal judge in Arizona earlier this month that blocked a personality law there, saying it appears to be unconstitutionally vague. The judge wrote that if the law were to go into effect, “everyone would guess” what criminal laws abortion providers might violate if they perform otherwise legal abortions.

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