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Georgia Abortion Law’s Personhood Provision Challenged by ACLU Lawyers

July 19, 2022

A panel of judges will soon rule on whether Georgia’s heartbeat abortion law can take effect. In 2019, Governor Brian Kemp (R) signed a bill prohibiting abortion once a “detectable human heartbeat” is present (the bill included exceptions for rape and incest when a police report has been filed). The law was blocked before it could be enacted by a federal judge who found it unconstitutional based on the federal Roe v. Wade precedent. Since the Supreme Court ruled that abortion is not protected in the Constitution, Georgia’s abortion law is up for review. 

Following the Dobbs decision in June, the 11th Circuit Court gave both sides three weeks to submit briefs explaining how the Supreme Court ruling affects the Georgia appeal. The deadline was last Friday. 

Georgia Solicitor General Stephen Petrany and lawyers for the state wrote to the court arguing that the injunction that kept the abortion law from taking effect should be lifted. “Plaintiff-Appellees now have no case,” Petrany wrote to the court. “Their challenge to Georgia’s prohibition of post-fetal-heartbeat abortions is dependent on a theory of substantive due process, and Dobbs held that there is no substantive due-process right to an abortion.”

In the opposing brief, lawyers for the American Civil Liberties Union (ACLU), Planned Parenthood, and the Center for Reproductive Rights acknowledged that the recent Supreme Court ruling allows the limits on abortions provided in the 2019 law. The ACLU lawyers now argue that the law should remain blocked, because the personhood provision gives an embryo the same legal rights as people have after birth. In the brief, they claim that this clause makes the law unconstitutionally vague. They argue that the personhood provision puts physicians at risk and infringes on patients’ right to procreate. 

Joy Stockbauer, a policy analyst at Family Research Council’s Center for Human Dignity, responded by saying, “These pro-abortion lawyers are claiming that the Georgia law is unconstitutionally vague in order to perpetuate their claims that protecting unborn life is at legal odds with women being able to access life-saving care in medical emergencies. Beyond the medical fact that abortion is never necessary to save a mother’s life, there are still explicit protections in the law for preserving the life of the mother, so there is not a reasonable claim to vagueness that would put physicians at risk.”

State attorneys also reject arguments that the personhood provision is unconstitutionally vague. They insist that it would support families by expanding child support obligations before the child is born to include medical and pregnancy-related expenses. Under the personhood provision, parents could also claim a fetus as a dependent for state income tax purposes. 

After reading the briefings from both sides, Georgia State University Law Professor Anthony Kries tweeted his predictions on the legal battle.

“... The state is correct that the injunction on the six-week abortion ban must be lifted and the judgment reversed. On the personhood question, there [are] strong arguments on both sides. …Given the disposition of this panel, I suspect the state’s arguments will carry the day,” tweeted Kries. “I give the personhood language a small but not insubstantial chance of being enjoined by the federal court.” 

Stockbauer firmly supports the injunction against this law being lifted. “Roe v. Wade is dead — the states are finally free to legislate on abortion,” she emphasized. “The personhood provision in this law also should not remain blocked. It reflects the intention of the legislature and is a significant component of the state’s freedom to determine with what perspective abortion will be dealt with in Georgia.”

Abortion Debate in Georgia’s Governor Race

Democrat gubernatorial candidate Stacey Abrams has vowed to repeal this abortion law should she become governor. She states that this is a “dangerous” law for the women of Georgia and does not align with most of the voters. 

Yet in a new poll from Harvard/Harris, 75% of Americans say that abortion laws should be left in the hands of states, with 49% saying they would support a heartbeat law that would ban abortions after six weeks. 

In a CNN interview shortly after the Dobbs decision, Abrams shared that she was “very much on the side of anti-abortion” throughout her upbringing in a religious family in Mississippi. However, she had a change of heart after watching a dear friend face the “very real consequences” of an unwanted pregnancy.

On “Fox News Sunday” last month, Abrams said, “I believe an abortion is a medical decision. I believe that should be a choice made between a doctor and a woman and in consultation with her family. But I think the challenge that we have is that we keep putting this in a political space.”

When asked, co-host Martha MacCallum pressed Abrams to share at what point she “starts caring about the life of that baby.”

Abrams reiterated that abortion is a medical decision and added, “I don’t know of a single woman who reaches the stage where this decision is easy.” 

“Stacey Abrams’s position on this issue back when she ran for governor in 2018 and running again now has been a very extreme position. This is not just to repeal this law. Her position is that she doesn’t really see any valid reason to restrict abortion at any point in pregnancy or for any reason, which is very concerning,” said Connor Semelsberger, director of Federal Affairs – Life and Human Dignity at Family Research Council.

Nationwide Battles over Abortion Law

The 11th Circuit Court panel will rule on the constitutionality of Georgia’s heartbeat law. But this will not be the end of the legal battles over Georgia’s abortion law. Supporters of abortion rights are planning to challenge the law in state courts, arguing that it does not align with Georgia’s constitution. 

Georgia’s abortion debate is not happening in a vacuum. Last week, a federal judge in Phoenix blocked Arizona’s 2021 state personhood law saying it put health providers at risk for prosecution for a variety of crimes.

U.S. District Judge Douglas Rayes agreed with the challengers of the personhood law that it appears to be unconstitutionally vague. He went on to share that he is grateful that other states have personhood laws despite the ongoing legal battles. These include Missouri, Kansas, and Alabama. 

“It’s great to see these governors and attorneys general and state legislators doing all that they can to defend these laws in the courts, which take time, money, and energy away from these governments being able to do other things that they may need to do to help their citizens.”

Semelsberger shared that although it is “burdensome” to undergo these legal battles, these states will “hopefully be able to protect life once and for all.” 

Stockbauer agreed, saying, “It is important for us, as a nation, to be thinking through how to best affirm the human dignity of the unborn, whether it is by ensuring that medical professionals seek to protect the lives of both the mother and the baby, or simply expanding child support provisions.”