Abortion rights advocates have filed a long-awaited legal challenge to Georgia’s new abortion law, claiming it is unconstitutional and “criminalizes abortion from the earliest stages of pregnancy.”
The Living Infants Fairness and Equality (LIFE) Act, signed by Georgia Gov. Brian Kemp in May, outlaws most abortions once fetal cardiac activity can be detected, typically at around six weeks of pregnancy and before many women even know they are pregnant. It is set to go into effect in January.
“This law is an affront to the dignity and health of Georgians,” states the legal challenge, filed Friday in the U.S. District Court for the Northern District of Georgia by the American Civil Liberties Union, Planned Parenthood and other groups representing doctors and patients.
“It is in particular an attack on low-income Georgians, Georgians of color, and rural Georgians, who are least able to access medical care and least able to overcome the cruelties of this law.”
Georgia is not the only state to pass a six-week abortion ban. But unlike other legislation, its law gives a fetus that has not developed a brain or other vital organs — and could not survive outside the womb — the status of “a class of living, distinct persons” that deserves “full legal recognition.”
Mary Ziegler, a law professor at Florida State University and expert on abortion rights, said that designation could have profound national ramifications.
“If the Supreme Court actually recognizes fetal personhood, it wouldn’t just leave each state to set its own policy about abortion,” she said. “It would actually make all abortions illegal across the country.”
The 37-page lawsuit filed Friday states that the new Georgia law, in preventing a person from deciding whether to continue or to terminate a pregnancy prior to viability, violates the right to privacy and liberty in the 14th Amendment.
It also targets the Georgia law’s “vague language,” stating that its new definitions of “person” and “human being” are not clear enough to be enforced and violate the 14th Amendment’s due process guarantee.
If the Georgia law is not blocked ahead of 2020, the lawsuit says, clinics and physicians would be forced to turn away patients seeking critical medical care.
Georgia already faces a critical shortage of reproductive health care providers, the complaint notes. Nearly half of its 159 counties have no practicing obstetrician-gynecologists and the state has the nation’s highest maternal mortality rate.
“Rather than working to end those preventable deaths, and rather than honoring Georgians’ reproductive health care decisions,” the complaint states, “the Legislature has instead chosen to criminalize abortion from the earliest stages of pregnancy.”
Georgia Atty. Gen. Chris Carr’s office said staff were reviewing the complaint, but it could not comment on pending litigation.
The abortion law has sparked liberal outrage across the country, with Hollywood actors and producers threatening to boycott Georgia, a top filming location. Major entertainment companies, including Walt Disney Co. and Netflix, have said they will consider halting production in the state if the new law takes effect.
The law is part of a wave of abortion restrictions and bans passed by conservative states in the South and the Midwest. Kentucky, Mississippi, Louisiana and Ohio also banned abortions after six weeks; Missouri passed an eight-week ban; and Alabama passed a law that would outlaw abortion from the moment of conception, with no exceptions for rape or incest.
Emboldened by the rightward tilt of the Supreme Court, Republican lawmakers hope to trigger a lawsuit that could lead the justices to overturn the landmark 1973 Roe vs. Wade decision, which recognized a woman’s constitutional right to abortion.
While the new laws have yet to take effect, some states have imposed so many other restrictions that clinics offering the procedure have been forced to close. In Missouri, state officials continue to spar with Planned Parenthood over the future of the state’s last remaining abortion clinic.
On Friday, a week after Missouri’s Department of Health and Senior Services denied Planned Parenthood’s St. Louis clinic its license to perform abortions, the clinic got yet another last-minute reprieve. The state’s Administrative Hearing Commission, a body that addresses licensing disputes, granted the clinic a stay that allows it to perform abortions while the case is pending. A commission hearing is set for Aug. 1.
Meanwhile, the U.S. Supreme Court declined Friday to hear another abortion case — over a 2016 Alabama law that bans the abortion procedure known as dilation and evacuation, which is used in almost all abortions performed after 15 weeks. That upholds the decision by lower courts to block the law.
So far, the justices have seemed reluctant to weigh in on abortion. Last month, they declined to consider reinstating an Indiana law that bans abortions performed because of fetal disability or the sex or race of the fetus.
Yet many close watchers of abortion law took note Friday of a concurring opinion by Justice Clarence Thomas.
While Thomas agreed with the Supreme Court’s decision not to hear the Alabama case on surgical abortions, he argued the court should reconsider its precedent on abortion.
“This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control,” Thomas wrote. “… Today, we are confronted with decisions requiring States to allow abortion via live dismemberment. None of these decisions is supported by the text of the constitution.”
He added: “Although this case does not present the opportunity to address our demonstrably erroneous ‘undue burden’ standard, we cannot continue blinking the reality of what this Court has wrought.”