ATLANTA (CN) — A panel of the 11th Circuit signaled Friday that they are in no rush to decide the fate of Georgia’s law banning most abortions after a fetus’s heartbeat can be detected.
With the Supreme Court already scheduled to hear arguments in challenge out of Mississippi that could overturn Roe v. Wade, the Atlanta-based federal appeals court suggested that the justices' input should get priority.
“I think that’s the prudent way to proceed,” U.S. Circuit Judge William Pryor said.
“It’s not every day that we can allow the Supreme Court to do some work for us,” the George W. Bush appointee added, laughing. “It’s nice when that happens.”
Along with U.S. Circuit Judge Barbara Lagoa, who is a Trump appointee, Pryor indicated that, regardless of the Supreme Court’s decision, they would be in favor of upholding some provisions of Georgia's law unrelated, at least directly, to its restrictions on abortion.
Separate from the provision about fetal heartbeats, Georgia's LIFE Act, short for Living Infants Fairness Equality, extends a tax credit to pregnant mothers by making a fetus a dependent minor for tax purposes. Another facet requires absent fathers to pay child support to expectant mothers.
Pryor told Elizabeth Watson, a staff attorney for the American Civil Liberties Union Foundation, she had “a tough road to hoe” when it comes to whether portions of the law can be separated from the whole.
Lagoa demanded to know how it was unconstitutional to make a man pay for the cost of a pregnancy that he is partially responsible for.
Watson responded that it might be constitutional if it had been passed “in isolation” from the rest of the law, prompting Pryor to interrupt and quip, “That sounds severable then.”
Georgia is appealing after a federal judge in Atlanta struck down the law as unconstitutional last year. Currently, women can get abortions in Georgia up to 20 weeks into pregnancy.
Though the LIFE Act is part of a raft of abortion challenges sweeping the nation, for a time it was considered the strictest in the country. A fetal heartbeat can usually be detected at six weeks of pregnancy, before most women even know they are pregnant.
Texas took the mantle as the state with the most restrictive abortion laws when Senate Bill 8 took effect on Sept. 1. The Supreme Court refused to intervene but challengers brought another emergency appeal to the Supreme Court over the bill just this week.
This is separate from a Mississippi case, Dobbs v. Jackson Women’s Health Organization, that the Supreme Court is scheduled to hear arguments on Dec. 1.
ACLU Foundation attorney Elizabeth Watson pointed out Friday that the Supreme Court's input in that case might focus only on Mississippi’s 15-week ban, a provision that is “substantially less” restrictive than the Georgia law.
Attorneys with the ACLU, Planned Parenthood and the Center for Reproductive Rights sued the state on behalf of abortion providers and advocacy groups after Republican Governor Brian Kemp signed the LIFE Act in May 2019.
U.S. District Judge Steve Jones, an Obama appointee, blocked enforcement of the law that October, calling out violations of Georgians’ right to privacy and liberty under the 14th Amendment as well as Supreme Court precedent.
Before the 11th Circuit on Friday, Watson insisted that that any of the law's provisions, while perhaps individually constitutional, cannot be separated from the broader purpose of the law, which she said is to give unlawful legal recognition to fetuses and embryos by declaring them to be people.
The Supreme Court refused in Roe v. Wade to conclude that the word “person” includes the unborn.
“You can’t enforce constitutional provisions pursuant to an unconstitutional law,” Watson argued.
The attorney added that the law imparts vagueness into Georgia's legal code because “it does not tell people how to change their conduct to account for this new class of persons that would exist inside of another person.”
Arguing on behalf of the state, attorney Jeffrey Harris of Consovoy McCarthy countered that courts should “sever an abortion’s law problematic provisions while leaving the remainder intact and try not to nullify more of a legislature’s work than is necessary.”
“The impact of these [provisions] would have affected far more women and families than anything regulating or restricting abortion,” Harris said.
Pryor called it clear to him, based on the record of the case, that the law would violate the “undue burden” standard.
“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 non-viable fetus,” Pryor said to Harris. “It seems to me, at least based on the stipulated record, you couldn’t possibly win.”
Pryor and Lagoa were joined on the panel by Senior U.S. District Judge Harvey Schlesinger, sitting by designation from the Middle District of Florida.
Follow Kayla Goggin on Twitter
Follow @KaylaGoggin_CNS
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Arguments begin in North Carolina voter ID trial May 6, 2024 -
