With injunction reversed, court says 'heartbeat' abortion law takes immediate effect

The Court of Appeals for the 11th Circuit issued an opinion on Wednesday vacating a lower court injunction on Georgia's 2019 abortion law. Later in the day, the court clarified that the law will take immediate effect.

The lower court injunction was all that blocked Georgia's abortion law from taking effect, according to Fred Smith, professor of law at Emory University.

"At this time, the law is in effect," Smith said, speaking just after the opinion was issued.

Two hours after the initial opinion was issued, the 11th Circuit issued an additional order affirming that this was the case.

“It is the constitutional duty of the Georgia Attorney General to defend the laws of our state," wrote Attorney General Chris Carr in a statement. "Today, our arguments have prevailed, meaning the Eleventh Circuit has allowed Georgia’s LIFE Act to take effect immediately.”

The court order removes the lower court injunction and reverses its decision in favor of the abortion providers who initially sued to block it. It also returns the case to the lower court to reconsider, and orders it to instead rule in favor of the state officials who are charged with implementing the rule.

"In their supplemental brief, the abortionists concede that Dobbs dooms their challenge to the Act’s prohibition of abortions after detectable fetal heartbeat," the opinion reads. "They also concede that their arguments that other provisions of the Act are inseverable from the abortion prohibition are now irrelevant. We agree."

Smith said the District Court will still need to issue a formal judgment now that the case has been returned to them, but with the injunction vacated it is a technicality.

In 2019, the Georgia General Assembly passed the heartbeat law that banned most abortions after about six weeks. Georgia law previously allowed abortions within 20 weeks of gestation.

Rape and incest are exceptions to the law, as long as a police report is filed, in addition to later abortions when the pregnant person’s life is at risk or a serious medical condition renders a fetus unviable.

Several groups, led by SisterSong Women of Color Reproductive Justice Collective, sued to block the heartbeat law claiming it was illegal under Roe v. Wade and that the law's definition of "natural person" to include unborn children was vague.

A federal district court judge agreed and blocked the law from taking effect. When the state appealed the case to the 11th Circuit, the appeals court waited on giving an opinion until the Supreme Court could deliver its opinion in Dobbs v. Jackson.

More: Abortion access groups, state attorney general files briefs on Georgia abortion law

The ACLU, which represented the plaintiffs, initially said that the law was still on hold for a few more weeks. After the additional order, they updated the statement.

"In a highly unorthodox move, the 11th Circuit Court of Appeals issued an immediate stay of a lower court’s injunction of Georgia’s six-week ban, rather than waiting the normal 28-day period for the official mandate to be issued," the updated statement reads. "This means the state’s six-week ban takes effect today, pushing abortion out of reach for Georgians before many even know they’re pregnant. The court took this action on its own, without any request from the state, and outside of the normal court procedures."

Background

After Dobbs was decided and the Supreme Court overturned Roe v. Wade, the 11th Circuit requested additional briefs on how the decision impacted the case.

"Plaintiff-Appellees now have no case," wrote Georgia Solicitor General Stephen J. Petrany for the state in a legal brief. "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."

Attorneys for the plaintiffs filed a joint brief acknowledging that after Dobbs there is no constitutional protection for abortion. But they argued that the injunction should become permanent based on vague language about personhood. They argued that the personhood definition is vague enough that it will have a chilling effect on clinicians attempting to provide routine care, including in the case of miscarriage.

The 11th Circuit rejected this argument in the opinion.

"Under the proper standard, the Act’s definition of natural person is not unconstitutionally vague on its face," the court rules in its opinion. "When focusing on the text, as we must, it is hard to see any vagueness."

More: Supreme Court Roe v. Wade decision means Georgia's abortion law can take effect quickly

Smith said that this was expected.

"A lot of courts across the country likely would have accepted the vagueness argument," he said, but not the 11th Circuit.

The issue of counting fetuses as persons under the law will raise additional legal questions that will continue to be litigated, but the 11th Circuit did not feel it was so unclear as to render the law unconstitutional.

"I think the personhood provision is going to raise all kinds of questions in the years ahead," Smith said. "(Now) the really big questions move beyond the federal courts and they move to the state courts."

Politicians Respond

Gov. Brian Kemp applauded the decision from the 11th Circuit in a short video posted to Twitter.

"Since taking office in 2019, our family has committed to serving Georgia in a way that cherishes and values each and every human being, and today's decision by the 11th Circuit affirms our promise to protect life at all stages," Kemp said.

Democratic gubernatorial candidate Stacey Abrams condemned Kemp for signing the law.

"It's a fact that in Georgia, forced pregnancy is now the law of the state," she said in a short video posted on Twitter. "Georgia women will lose their right to choose before most even know they're pregnant, because of the governor's callous decision to put his politics above ... healthcare needs."

Sen. Raphael Warnock issued a statement opposing the ruling.

“Today's ruling is yet another consequence of the dangerous decision by the United States Supreme Court to overturn Roe v. Wade and allow politicians to interfere in these personal medical decisions," Warnock was quoted as saying in a news release. "While we may grieve this ruling, we can’t give into despair. Reproductive health care is health care."

This article originally appeared on Augusta Chronicle: Georgia's 2019 'heartbeat' abortion law injunction reversed