ATLANTA – Both sides in Georgia’s abortion fight have laid out new legal arguments in the wake of last month’s U.S. Supreme Court ruling overturning the 1973 Roe v. Wade decision that legalized the procedure.
The case started when the General Assembly passed legislation in 2019 banning most abortions in Georgia after a fetal heartbeat could be detected – usually around six weeks of pregnancy.
A U.S. District Court blocked the law from taking effect after a group of reproductive care providers – led by SisterSong – successfully sued in 2020.
The state of Georgia appealed the district court’s decision to the 11th U.S. Circuit Court of Appeals. Last fall, the appellate court put a decision on Georgia’s law on hold until a definitive Supreme Court ruling on abortion.
When the Supreme Court overturned Roe v. Wade – stating that there is no constitutional right to abortion in America – the appellate court requested updated legal briefs from both sides in the Georgia case.
In a brief filed late last week, reproductive rights advocates who oppose the law appear to say they will no longer pursue a constitutional right to abortion as a legal path to block Georgia’s abortion law. Instead, both sides’ briefs focused on the broad definition of a “person” found in Georgia’s abortion law.
Part of the Georgia abortion law redefines a “natural person” to include “an unborn child,” which is now emerging as a key legal debate.
The brief from SisterSong and other reproductive care providers in Georgia argues that the broad definition of a person found in the Georgia abortion law – read in concert with other parts of Georgia law – would result in a chilling effect on medical care for pregnant women in Georgia.
They say the broad definition could even lead to prosecution of medical providers for providing “critical medical care that pregnant patients need.”
The chilling effect on physicians would cast a shadow over patients’ care – specifically the “fundamental right to procreate,” argue the plaintiffs. That would infringe on people’s right to make childbearing decisions.
“By threatening reproductive health-care providers with criminal penalties for providing routine obstetrical and gynecological care, such as amniocentesis and miscarriage care, and thus chilling and delaying needed diagnostic and treatment … the Personhood Definition forces those who choose to procreate to incur needless medical risk,” the plaintiffs said.
In contrast, the state contends that the “natural person” definition in the abortion law is not unconstitutionally vague.
The state also argues that even if the “natural person” definition found in Georgia’s abortion law is unconstitutionally vague, that would leave the rest of the Georgia abortion law intact.
This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.
Georgia’s “heartbeat law” banning abortions after the first six weeks won’t take effect until at least mid-July despite last week’s U.S. Supreme Court ruling overturning the 1973 Roe v. Wade decision that legalized the procedure.
The 11th U.S. Circuit Court of Appeals is asking both sides in a lawsuit over Georgia’s law to file legal briefs within the next three weeks. The heartbeat law prohibits most abortions in Georgia after the detection of a fetal heartbeat. Passed in 2019, the law never took effect due to a lawsuit filed by reproductive rights organizations.
Most recently, the appellate court put a decision on the Georgia law on hold until the Supreme Court ruled on abortion – as it did on Friday.
Hours after the court announced its decision, Georgia attorney general Chris Carr filed a notice asking the appellate court to rule on Georgia’s law.
State Sen. Jen Jordan Monday signaled what could be Georgia Democrats’ legal strategy in the case. Jordan, D-Atlanta, who is challenging Republican Carr’s reelection bid, told reporters at a news conference the heartbeat law is unconstitutional both under Georgia and federal law.
Jordan said Georgia’s constitution provides a very strong right to privacy, which the heartbeat law violates.
“A right of privacy has been recognized in Georgia since approximately 1903,” she said.
“Georgia’s [right] has been reaffirmed over and over and over, and it is considered to be one of the strongest in the nation in terms of the case law interpreting it. There is absolutely a viable path in terms of challenging the law under the Georgia constitution.”
Designating a fertilized egg a legal person, as the law does, would open a “Pandora’s box” of litigation, Jordan said.
Women who miscarry a pregnancy could face investigation or prosecution under the heartbeat law, Jordan said.
“We are facing basically a situation where women are going to be asked incredibly private questions about their lives,” she said.
Jordan said that if elected attorney general, she would not enforce the law.
“I would not defend it because I don’t believe it is lawful,” she said.
At least eight Georgia district attorneys (DAs) have said they will not prosecute people seeking or providing abortion in their jurisdictions.
“We stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions,” said a letter sponsored by Fair and Just Prosecutors, a national network of elected prosecutors working for criminal justice reforms.
That letter was signed by the DAs for Gwinnett, DeKalb, Douglas, Chatham, Athens, Macon and Augusta as well as DAs in other states.
Fulton County DA Fani Willis also said on Friday that she would not prosecute abortion seekers or providers.
This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.
ATLANTA – Democrat Stacey Abrams released her first ad of the general election campaign for governor Wednesday, hitting Republican Gov. Brian Kemp on guns, abortion and tax cuts.
In the 30-second ad, Abrams targets legislation the GOP-controlled General Assembly passed this year allowing Georgians to carry firearms without a permit.
“[Kemp] made it easier for criminals to carry guns in public,” the ad’s narrator says.
The ad goes on to criticize the “heartbeat” bill lawmakers passed in 2019, the governor’s first year in office, which prohibits abortion after a fetal heartbeat is detected, typically about six weeks into pregnancy.
Guns and abortion rose to the top of the Democrats’ list of issues to aim at Republicans in recent weeks.
Early last month, the leaking of a first draft of a U.S. Supreme Court ruling appeared to put the court on a path toward overturning the 1973 Roe. v. Wade ruling that legalized abortion. Later in May, two mass shootings in New York and Texas focused attention on gun laws.
During Kemp’s successful Republican primary campaign against former U.S. Sen. David Perdue, the governor said the heartbeat bill was the strictest anti-abortion measure in the nation.
He argued the purpose of the permit-less carry bill was to make it easier for law-abiding Georgians to protect themselves from criminals who don’t bother to seek permits for their illegal weapons.
Abrams’ ad also accuses Kemp of backing tax cuts with benefits that skew toward upper-income taxpayers.
“While Georgians struggle, Kemp gave massive ‘old-school’ tax cuts to himself and his wealthy friends,” the ad asserts.
When he signed the tax cut bill in late April, Kemp said it will save a family of four with an annual household income of $60,000 more than $600 a year.
This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.
U.S. Rep. Lucy McBath testifies before a House hearing on abortion rights in Washington on Wednesday
ATLANTA – U.S. Rep. Lucy McBath, D-Marietta, shared her painful story of multiple miscarriages before a House Judiciary Committee hearing on abortion rights Wednesday.
Committee Chairman Rep. Jerrold Nadler, D-N.Y., called the hearing in response to the leak of a U.S. Supreme Court opinion about two weeks ago. That draft opinion indicates the court is likely to overturn Roe v. Wade, the 1973 decision that gave American women the right to an abortion.
McBath raised the specter of the criminalization of miscarriage if abortion is outlawed, saying that she would not have had access to adequate medical care during her three miscarriages if abortion had been illegal.
“After which failed pregnancy should I have been imprisoned? Would it have been after the first miscarriage, after doctors used what would be an illegal drug to abort the lost fetus?,” McBath asked.
“I ask because the same medicine used to treat my failed pregnancies is the same medicine states like Texas would make illegal. I ask because if Alabama makes abortion murder, does it make miscarriage manslaughter?”
McBath is one of a growing number of women who have decided to publicly share their stories of abortion and miscarriage in response to the specter of losing the right to abortion. State Rep. Shea Roberts, D-Atlanta, shared her story of ending an unviable pregnancy during a press conference in Atlanta earlier this month.
“Women’s rights are human rights. Reproductive health care is health care. Medical decisions should be made by women and those that they trust, not politicians and officials,” McBath proclaimed at the end of her testimony.
“Freedom is our right to choose.”
McBath currently represents Georgia’s 6th Congressional District in Washington. However, Georgia’s recent redistricting process redrew the district lines to make it much more Republican-leaning.
Rather than take her chances running against a Republican in the 6th District in the November general election, McBath decided to run against current U.S. Rep. Carolyn Bordeaux, D-Suwanee, for the 7th District seat in next week’s Democratic primary.
The battle between the two is one of the most hotly contested Democratic races in the May 24 primary.
NARAL, a national pro-choice advocacy group, endorsed both McBath and Bordeaux last year.
This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.
ATLANTA — The Georgia House Democratic Caucus held a press conference Monday in which representatives – all women – decried the potential loss of abortion rights in Georgia and urged voters to support pro-choice candidates in upcoming elections.
The caucus called the press conference in response to the leak of a draft U.S. Supreme Court opinion that indicates the court is likely to overturn the Roe v. Wade precedent that legalized abortions in 1973.
“I was shocked that it actually seems to be happening,” said Rep. Mary Margaret Oliver, D-Decatur, about the leaked Supreme Court opinion. “This is a significant change in the history of our country.”
“I am deeply afraid for the lives of women,” Oliver said.
The Georgia legislature passed a law in 2019 that outlawed most abortions in the state. House Bill 481 – the so-called “heartbeat bill” — prohibited most abortions after a fetal heartbeat can be detected, generally at around six weeks of pregnancy.
Gov. Brian Kemp signed the bill into law in May 2019. Reproductive rights groups then successfully challenged the law in federal court. A judge permanently enjoined the law in January 2020.
But if the Supreme Court overturns Roe v. Wade, Georgia’s HB 481 could quickly go back into effect, Oliver said. There would be an “open door” for the state to move the courts to reinstate the law.
Oliver said she keeps “hearing rumors” that Kemp may call a legislative special session to enact a ban on abortions before the 2023 session.
Former U.S. Sen. David Perdue, who is running against Kemp in the Republican gubernatorial primary on May 24, has called for a special legislative session to ban abortion in Georgia as soon as Roe v. Wade is overturned.
“You are either going to fight for the sanctity of life or you’re not,” Perdue tweeted last week.
Some Republican primary candidates have said they are against abortion with no exception for rape or incest.
Rep. Shea Roberts, D-Atlanta, said Monday she decided to publicly share her own story about deciding to have an abortion after finding out about the leaked opinion.
Roberts said she terminated a pregnancy 15 years ago after learning that her fetus had an incurable chromosomal abnormality that was “incompatible with life.”
Roberts, who already had a child, considered carrying the pregnancy to term. But she decided not to because of the health risks that would pose to her.
“Is it worth risking your life and possibly leaving your daughter an orphan only to delay the inevitable?” Roberts said her doctor asked at the time.
Though the decision was painful, “I have absolutely no doubt in my mind it was the right decision for me and my unborn child,” Roberts said.
“It’s unthinkable that despite a trained physician recommending to the contrary, [someone] might be forced to stay pregnant at great risk,” Roberts added. “That is not pro-life.”
Other representatives pointed out that women would continue to seek out abortions even if they are illegal, potentially putting lives at risks.
“Let me be clear: outlawing abortions does not stop abortions but just limits the access to safe abortions,” said Rep. Kim Schofield, D-Atlanta.
If Roe v. Wade is overturned and abortion is banned in Georgia, “Women will die,” Rep. Stacey Evans, D-Atlanta, emphasized.
Rep. Park Cannon, D-Atlanta, pointed out that 79 counties in Georgia lack a single ob/gyn doctor who could provide labor and delivery services to women and that many hospitals in the state have closed.
Other legislators pointed to the potential economic fallout of an abortion ban in Georgia.
Rep. Betsy Holland, D-Atlanta, said an abortion ban would be an “economic disaster for the state.”
She pointed out that after HB 481 passed in 2019, some businesses decided to withdraw from the state. Parents of female college students told her they wanted their daughters to study out-of-state, where their rights would be protected.
“If you’re an ob/gyn, are you going to come to a state where you have to choose between upholding the Hippocratic oath or keeping yourself out of jail?,” asked Holland.
Rep. Dar’shun Kendrick, D-Atlanta, argued that the legislature should focus on jobs and health care rather than regulating women’s rights that are “none of their business.”
“We have to be prepared for the worst,” Kendrick said.
