Anti-abortion ‘heartbeat’ bill injunction awaits federal judge decision

By: - September 24, 2019 8:34 am

Susan Talcott Camp, an attorney with the American Civil Liberties Union, speaks outside Atlanta’s federal court building alongside plaintiffs and other attorneys after last week’s hearing on the state’s strict anti-abortion law. File/Georgia Recorder

The fate of a law banning most abortions in Georgia is in the hands of a federal judge following a court hearing Monday as he considers a request to temporarily halt the law before it is set to take effect Jan. 1.

Judge Steve Jones, of the U.S. District Court of the Northern District of Georgia, said Monday he would “take it under advisement” whether to grant a request for a preliminary injunction from attorneys representing several abortion rights groups. Georgia’s strict new abortion law could be set aside until after a bench trial for a permanent injunction is held if Jones grants the temporary injunction.

Jones also indicated he might consolidate the preliminary and permanent injunction requests into a single trial, which would likely delay a resolution by his court beyond Jan. 1. 

The judge indicated he expects an appeal no matter how he rules on the injunction requests.

“I recognize I’m not going to be the last word on this,” Jones said from the bench Monday, following nearly two hours of testimony from attorneys from the American Civil Liberties Union on one side and those representing state officials on the other.

Attorney Susan Talcott Camp, representing the ACLU at Monday’s hearing, asked Jones to decide on the injunction requests “well before” the Jan. 1 implementation date.

Federal judges have issued preliminary injunctions against similar abortion bills in recent months, including in Mississippi, Kentucky, Arkansas, Ohio and Utah.

A host of abortion rights plaintiffs, led by the nonprofit SisterSong Women of Color Reproductive Justice Collective and Planned Parenthood, filed suit in late June to stop the “heartbeat” law from taking effect in Georgia. They claim the law would violate constitutional due-process rights to privacy and to terminate a pregnancy, rights that courts have upheld since the U.S. Supreme Court’s landmark 1973 Roe v. Wade ruling on abortion access.

Without court intervention, Georgia would ban most abortions under the new law starting next year once a fetal heartbeat can be detected – about six weeks into a pregnancy. Gov. Brian Kemp signed legislation on the ban into law in May after fierce debate at the state Capitol. It is billed as one of the most restrictive abortion laws in the country.

Judges typically consolidate preliminary and permanent injunction requests when able to do so without causing legal harm to either party, said Robert Schapiro, a professor of constitutional law at Emory University. But with a very contentious law set to affect a large amount of people in Georgia, it would be “quite unusual” for Jones to wait until after the law takes effect on Jan. 1 before deciding on the preliminary injunction, he said Monday after the hearing ended.

Ronald Carlson, a professor emeritus in trial law at the University of Georgia, said any injunction issued by Jones will get close scrutiny, since it will likely be appealed by Georgia’s attorney general and could potentially head to the U.S. Supreme Court.

“So the (judge) has to be especially careful in making sure he or she gets it right because there are long-range as well as immediate implications,” Carlson said Monday.

Attorneys for the plaintiffs at Monday’s hearing said the state’s restrictions are prohibited by precedent. The state argued the law falls short of an outright ban and should be permitted to take effect.

Prohibiting abortions after six weeks would run counter to Roe v. Wade, which established that abortions should be permitted before a fetus reaches the “point of viability” between 24 to 28 weeks into a pregnancy, argued Talcott Camp, of the ACLU. Georgia officials have not offered up any compelling reason why the state should be allowed to have more restrictive abortions rules, she said.

“No state interest is strong enough to support a ban before the point of viability,” Talcott Camp said in court Monday. “This law’s got to go.”

However, Patrick Strawbridge, a private attorney representing Kemp and Georgia Attorney General Chris Carr, said it will not create an outright ban, since it allows abortions before a heartbeat can be detected and in limited exceptions like medical emergencies. Strawbridge and other attorneys representing state officials have previously said in an Aug. 19 court motion that the law aims to promote maternal health, medical ethics and “the State’s interests in protecting the life of the unborn.”

“We don’t think this is a ban,” Strawbridge said Monday. “And we don’t think this is per se unconstitutional.”

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Beau Evans
Beau Evans

Beau Evans has covered local and state government and breaking news in New Orleans and California. He’s reported on immigration issues, the threat of rising seas to coastal areas, public safety and hurricanes. At The Times-Picayune in New Orleans, Evans detailed the critical role government plays to ensure that people in a community have access to clean water and other public needs. In 2018, his investigative reporting revealed top officials at New Orleans’ cash-poor water utility dealt themselves huge raises, prompting several to resign. Evans’ prior reporting was in West Marin north of San Francisco for The Point Reyes Light. Evans is an Atlanta native who graduated with honors from The Lovett School and is an honors graduate of North Carolina’s Davidson College. Beau was with the Georgia Recorder until January 4th, 2020.