A federal appeals court overturned a lower court ruling and allowed Georgia’s restrictive 2019 abortion law to take effect immediately Wednesday. The decision was expected after the U.S. Supreme Court ruled last month that there is no constitutional right to an abortion.
The law, which had been barred from taking effect, bans most abortions once a “detectable human heartbeat” is present. Cardiac activity can be detected by ultrasound in cells within an embryo that will eventually become the heart as early as six weeks into a pregnancy, before many pregnancies are detected.
The Georgia law includes exceptions for rape and incest, as long as a police report is filed. It also allows for later abortions when the mother’s life is at risk or a serious medical condition renders a fetus unviable.
A three-judge panel of the 11th U.S. Circuit Court of Appeals said that a U.S. Supreme Court ruling in a Mississippi case that overturned Roe v. Wade allows the law to take effect. Circuit Court Chief Judge William Pryor wrote that the ruling in that case “makes clear no right to abortion exists under the Constitution, so Georgia may prohibit them.”
The appeals court also rejected arguments that a provision of the law that changes the definition of “natural person” is unconstitutionally vague. The “personhood” provision gives a fetus the same legal rights as people have after birth.
Normally, the ruling wouldn’t take effect for weeks. But the court issued a second order Wednesday allowing the law to take effect immediately.
The National Abortion Federation listed 10 clinics that were providing surgical abortions in Georgia before the ruling. At least one clinic in Savannah had already closed following the Supreme Court ruling.
Andrea Young, executive director of the American Civil Liberties Union of Georgia, which sued to challenge the law on behalf of Georgia abortion providers and an advocacy group, said the organization “will continue to fight for abortion rights for the women of Georgia with all of the tools at our disposal.”
The ruling promises to intensify partisan fault lines in Georgia’s high-profile midterm elections for governor and U.S. Senate.
Gov. Brian Kemp, a Republican, signed the Living Infants Fairness and Equality Act, or LIFE Act, in 2019. He has avoided saying whether he favors further restrictions, although he at one time staked out an absolutist position that wouldn’t have provided exceptions for rape or incest.
As he looks toward the general election in November against Democrat Stacey Abrams, Kemp has emphasized what his staffers characterize as a broader “life” agenda, noting his support for extending the Medicaid health insurance program to cover poor mothers for a full year after birth. Kemp staffers also question the feasibility of passing a more restrictive law, noting the current law passed by only one vote.
“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 Wednesday.
Abrams said “women are now second-class citizens” and promised to fight to repeal the law if elected. With a legislature even she acknowledges is likely to remain in Republican hands, that could be difficult.
“Today, Kemp achieved his goal: to endanger women, strip away our right to choose, and deny our ability to determine what is best for our bodies,” Abrams said. “In a state where pregnancy is too often fatal, he is proud of denying women the right to make medical decisions for themselves.”
In the Senate contest, Democratic Sen. Raphael Warnock and Republican challenger Herschel Walker have for weeks highlighted their differences on abortion.
Campaigning Wednesday ahead of the 11th Circuit ruling, Walker said it’s “a problem” that there’s no national ban, and he’s said previously that “there’s no exception in my mind” that should allow women to terminate pregnancies resulting from rape or incest or those that threaten a woman’s life or health. Still, Walker stopped short of saying he’d vote for a ban in a Republican-controlled Congress.
Warnock, who calls himself a “pro-choice pastor,” said on Twitter that the 11th Circuit decision “allows (Georgia) politicians to take away women’s ability to make their own health care decisions. I will never stop fighting to restore the rights of women to determine and access their own care.”
Throughout the 16-page opinion, Pryor used the term “abortionist” to refer to those who challenged the law. His predecessor as 11th Circuit chief judge, now-Senior Judge Ed Carnes, noted in a 2018 opinion in an Alabama abortion case that some find the term pejorative. He also noted some consider the terms “physicians” and “doctors” inappropriate for people who perform abortions. As a result, he chose to “take a middle course and use the term ‘practitioner,’ except where one of the other terms appears in a quotation,” he wrote.
The term appeared three times in Alito’s majority opinion overturning Roe.