By Daniel Gump
On June 28, 2019, SisterSong Women of Color Reproductive Justice Collective, on behalf of itself and its members, filed a Verified Complaint for Declaratory and Injunctive Relief (1) against Georgia’s House Bill 481, known upon passage as the Living Infants Fairness and Equality Act (2). In the Complaint, the Collective challenged the constitutionality of HB 481’s prohibition on most abortions “after the detection of a fetal heartbeat,” asserting two causes of action:
- violation of the Substantive Due Process right to privacy and liberty under the Fourteenth Amendment to the United States Constitution, and
- violation of Procedural Due Process under the Fourteenth Amendment to the United States Constitution for vagueness.
Additionally, the Collective asserted the bill’s definition of “natural person” is “unconstitutionally vague” in how it would affect existing state codes.
On July 23, 2019, Plaintiffs (SisterSong, et al.) filed a Motion for Preliminary Injunction (3), asking the 5th Circuit Court to enjoin Defendants (Kemp, et al.) from enforcing HB 481 upon its effective date of January 1, 2020. The Court conducted a hearing with representatives of both parties two months later, and Judge Steve C. Jones issued the Court’s ruling on October 1, 2019 (4):
The ruling begins with an assessment of current abortion law, summarizing United States Supreme Court precedent, existing abortion laws in Georgia, and the challenged HB 481.
In the Court’s overview of established precedent, Judge Jones summarizes the decision of Roe v. Wade (5), which applied the Due Process Clause of the Fourteenth Amendment (6) to rule on “the constitutional right to privacy.” He acknowledges that the US Constitution “does not explicitly mention any such right to privacy” but that precedent was established as far back as 1891 in Union Pacific v. Botsford (7). Judge Jones then lists several US Supreme Court decisions that afforded privacy protections for “personal and intimate decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education (8).” The discussion returns to Roe’s trimester framework that made it clear the “right to abortion is not absolute,” since state interests regarding “health, medical standards, and prenatal life” (9) increase later in pregnancy. He concludes this overview of US Supreme Court precedent with a discussion of Planned Parenthood v. Casey (10) and its replacement of Roe’s trimester framework with a prohibition on government placing an “undue burden” on a pregnant woman in seeking an abortion before viability.
Judge Jones states that existing Georgia law prohibits abortions at twenty weeks from fertilization (11) with a few medical exceptions beyond that (12). HB 481 seeks to amend the State’s definition of personhood to include any “natural person” from the point of fetal heartbeat detection and to prohibit most abortions at that point (13). Additionally, HB 481 establishes penalties for violations of the prohibition by a third-party actor and allows the patient to sue for wrongful injury or death of the unborn child.
In looking at Plaintiffs’ request, the Court first assesses general standing in the case. Judge Jones discusses several earlier precedents of plaintiffs successfully filing under perceived threat of future prosecution. Since Plaintiffs stated they “will continue to conduct treatment and services which will ‘undisputedly be criminal under H.B. 481’,” (14) the Court determines they have standing to sue.
Next, the Court assesses Plaintiffs’ assertion that the application of the terms “person” and “human being” in HB 481 are vague. Plaintiffs claimed that such definitions could confuse the practitioners they represent as to whether treatment, which includes “miscarriage management, cancer treatment, amniocenteses, and hormone therapy,” could open them to prosecution under OCGA § 16-5-60 (reckless conduct crimes). They also claimed that physicians would take on the burden of liability by becoming “mandatory reporters” under OCGA §§ 19-7-5 (reporting of child abuse), 16-5-70 (cruelty to children), 16-5-21 (aggravated assault), and 16-12-171 (sale of tobacco to minors) (15). Due to that possible burden, the Court agrees Plaintiffs have valid standing.
After determining Plaintiffs have valid standing, Judge Jones proceeds to discuss the likelihood of successful final ruling on the motion for preliminary injunction, using four criteria:
- There is a likelihood of success on the merits.
- Plaintiffs would suffer irreparable injury without injunctive relief.
- Plaintiffs’ injury outweighs Defendants’ damage.
- Relief is in the public interest.
The Court determines that US Supreme Court precedent supports Plaintiffs, since HB 481 appears to violate the “right to privacy” in Roe and “undue burden” in Casey. Judge Jones cites previous cases MKB Management Corp. v. Stenehjem (16) in North Dakota and Edwards v. Beck (17) in Arkansas — which struck down abortion bans after fetal heartbeat detection — and lists several other 2019 “fetal heartbeat” bills that already have preliminary injunctions granted against them (i.e. Ohio, Mississippi, and Kentucky). He also states that exceptions to the restrictions do not simply make the legislation a “regulation,” rather than a “ban.” Based on all of this, the Court determines there is likelihood of success with respect to Count 1 of the Complaint, meeting the first criterion.
The Court also determines “personhood” as it is defined in the statute will indeed cause due process problems, citing several earlier cases for precedent. Judge Jones notes that the challenge is not the amended definitions of “personhood,” “natural person,” and “human being,” themselves — just their applications in the OCGA. The Court believes this could open Plaintiffs to “arbitrary or discriminatory enforcement.” The Court considers this to meet the “irreparable harm” criterion for granting a preliminary injunction. Since Plaintiffs are attempting to keep the status quo with no possibility of damage to Defendants either way the case goes, the Court also sees this possibility of injury to Plaintiffs as being great enough to pass the third criterion. Finally, the Court believes the “public interest” criterion to be met by “the robust enforcement of constitutional rights.”
Defendants argued that the Motion was “grossly overbroad,” so Judge Jones addresses severability. The Court determines that HB 481 Section 5 (child support), Section 6 (tort recovery), and Section 12 (tax exemption), all contain language referencing the amended definitions, so Section 14 (severability) is invalid, and therefore ineffective in separating those provisions from the rest of the legislation. Thus, the Court held the entire bill is subject to the preliminary injunction — which will hold until further order from the Court.
Georgia is the most recent state in a wave of “fetal heartbeat” legislation to be blocked in part or in whole by preliminary injunctions. It is unclear at this point which (if any) of these “fetal heartbeat bills” will survive the challenges in court. Yet, since the states are willing to fight these challenges, it is becoming more likely that the US Supreme Court may take up such fights on appeal to provide their final ruling.
(This article is a follow-up to Analysis of Georgia’s Living Infants Fairness and Equality (LIFE) Act.)
- “SISTERSONG V. KEMP FILED COMPLAINT,” American Civil Liberties Union. June 28, 2019. October 2, 2019. https://www.aclu.org/legal-document/sistersong-v-kemp-filed-complaint
- Living Infants Fairness and Equality (LIFE) Act 2019 (House Bill 481, Ga.) http://www.legis.ga.gov/Legislation/20192020/187013.pdf
- “BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION,” American Civil Liberties Union. July 23, 2019. October 2, 2019. https://www.aclu.org/legal-document/brief-support-motion-preliminary-injunction
- SisterSong Women of Color Reproductive Justice Collective et al. v. Brian Kemp et al. “Order” (No. 1:19-cv-02973-SCJ, 2019) October 1, 2019 https://media-beta.wsbtv.com/document_dev/2019/10/01/AbortionRuling_16478361_ver1.0.pdf
- Jane Roe, et al. v. Henry Wade (410 US 113, 153-54; 1973) https://www.oyez.org/cases/1971/70-18
- 14th Amendment of United States Constitution (US, 1868) https://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=015/llsl015.db&recNum=739
- Union Pacific Railroad Company v. Botsford (141 US 250, 251; 1891) http://cdn.loc.gov/service/ll/usrep/usrep141/usrep141250/usrep141250.pdf
- SisterSong Women of Color Reproductive Justice Collective et al. v. Brian Kemp et al. “Order”. p.6. Ibid.
- Roe v. Wade 1973. Ibid.
- Planned Parenthood of Southeastern Pennsylvania, et al. v. Robert P. Casey, et al. (505 US 833; 1992) https://www.oyez.org/cases/1991/91-744
- Official Code of Georgia Annotated § 31-9B-1(5) (Ga., 2010) https://advance.lexis.com/container?config=00JAAzZDgzNzU2ZC05MDA0LTRmMDItYjkzMS0xOGY3MjE3OWNlODIKAFBvZENhdGFsb2fcIFfJnJ2IC8XZi1AYM4Ne&crid=d74a5072-200c-4651-920c-2bf76f48c5ee&prid=5cb09ff2-b197-470b-8f48-ec1483036bbb
- OCGA §§ 16-12-141(c)(1)(A–B). Ibid.
- LIFE Act 2019. Ibid.
- SisterSong Women of Color Reproductive Justice Collective et al. v. Brian Kemp et al. “Order”. p.19. Ibid.
- OCGA §§ 16-5-21, 16-5-60, 16-5-70, 16-12-171, 19-7-5. Ibid.
- MKB Management Corp v. Wayne Stenehjem, et al. (795 F.3d at 773; 2015) https://caselaw.findlaw.com/us-8th-circuit/1708686.html
- Louis Jerry Edwards, et al. v. Joseph M. Beck, et al. (786 F.3d 1113,1117 8th Cir.; 2015) https://law.justia.com/cases/federal/appellate-courts/ca8/14-1891/14-1891-2015-05-27.html