Judge asked to decide permanent fate of Georgia abortion law

ATLANTA - After a federal judge temporarily blocked Georgia’s restrictive abortion law, lawyers for the state and for opponents of the measure are battling in court over whether the law should be permanently barred from taking effect.

The law bans abortions once a “detectable human heartbeat” is present, with some limited exceptions. Cardiac activity can be detected by ultrasound as early as six weeks into a pregnancy, before many women realize they’re expecting, according to a legal challenge.

The law, signed by Georgia Gov. Brian Kemp in May, was set to become enforceable Jan. 1. But a lawsuit challenging it was filed in June on behalf of Georgia abortion providers and an advocacy group, and U.S. District Judge Steve Jones in October temporarily blocked the law.

Lawyers with the American Civil Liberties Union, Planned Parenthood and the Center for Reproductive Rights, who filed the lawsuit, and lawyers for the state on Thursday filed motions for summary judgment. That means each side is asking the judge to rule in its favor based on the facts in the case without going to trial.

The law defines a “detectable human heartbeat” as “embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the heart within the gestational sac.” Referring to a document from the American College of Obstetricians and Gynecologists, the lawsuit says “cells that eventually form the basis for development of the heart later in pregnancy” produce “cardiac activity” that can be detected by ultrasound as early as six weeks into a pregnancy.

The law makes exceptions in the case of rape and incest, as long as the woman files a police report first. It also allows for abortions after cardiac activity is detected when the life of the woman is at risk or when a fetus is determined not to be viable because of a serious medical condition.

Additionally, it declares an embryo or fetus a “natural person” once cardiac activity can be detected, saying that is the point where “the full value of a child begins.” That would make the fetus a dependent minor for tax purposes and trigger child support obligations.

U.S. Supreme Court precedent has for nearly five decades held that states cannot ban abortion prior to the viability of a fetus, and since Georgia’s law does just that it is unconstitutional, the law’s opponents argue.

They also argue that the new personhood definition is unconstitutionally vague because it applies throughout state law and “renders numerous criminal and civil provisions of the Code unclear.” Notably, they write, it is unclear whether and when health care providers could face criminal prosecution if treatment harms a fetus.

Lawyers for the state argue that the doctors and advocacy group who brought the suit lack the legal standing to challenge the law, in part because they are not individual women who face “a burden on their right to an abortion.”

The state lawyers also argue that the definitions associated with the personhood section of the law are “clear and unambiguous” and that the “notion that the Act could somehow be read to criminalize standard medical care provided in good faith is baseless.”

Lawyers for the state also argue that even if the judge finds certain portions of the law unconstitutional, the other sections should be allowed to take effect.

In his October order temporarily blocking the law, Jones wrote that based on current Supreme Court precedent regarding attempts to ban abortions prior to viability, the challenge to Georgia’s law is likely to succeed.

He also expressed concern over the part of the law that redefines a “natural person” to include “any human being including an unborn child,” which is defined as an embryo or fetus “at any stage of development who is carried in the womb.” In its landmark Roe v. Wade ruling in 1973, which legalized abortion nationwide, the U.S. Supreme Court considered and rejected that precise definition, Jones wrote.

Georgia’s previous abortion laws remain in effect while last year’s measure is blocked. They prohibit abortions at 20 weeks or more “from the time of fertilization,” unless the fetus has a defect so severe it is unlikely to live or if a doctor reasonably finds that an abortion is necessary to protect the life or health of the mother.

Georgia’s so-called heartbeat law is one of a wave of laws passed recently by Republican-controlled legislatures in an attack on the Roe v. Wade ruling.