Georgia’s “heartbeat bill” — which bans abortions after a sonogram can detect a fetal heartbeat, usually at about six weeks — was finally challenged in federal court Friday. Several abortion clinics, doctors and patients throughout the state, represented by the American Civil Liberties Union, Planned Parenthood and the Center for Reproductive Rights, have filed a lawsuit against Georgia, claiming the legislation is unconstitutional.
The legal challenge was expected. Similar lawsuits were filed in the vast majority of states that passed abortion bans this year — Mississippi, Ohio, Kentucky, Alabama, Utah and Arkansas — all attempts to challenge Roe v. Wade now that there’s a conservative majority on the Supreme Court. Kentucky’s bill was challenged, and enjoined, the same day it was signed into law; lawsuits were filed in most other states within a few weeks. (Missouri and Louisiana are the only states where bans have not yet been challenged, likely because their bills were signed considerably later in the year, on May 24 and May 30, respectively.)
Republican Gov. Brian Kemp signed Georgia’s “heartbeat bill” almost two months ago.
Why has it taken so long for some abortion clinics and advocacy groups to mount a challenge?
One reason is purely procedural, said Jennifer Dalven, the director of the Reproductive Freedom Project at the ACLU. The abortion bans have been slated to go into effect on different dates in different states. Kentucky’s, for example, was written to take effect immediately after the governor signed it — so advocacy groups were able to act quickly. In Georgia, on the other hand, abortion-rights advocates had a little more wiggle room. The Georgia ban is not slated to take effect until Jan. 1.
The legal challenge to Georgia’s ban also took longer because the state’s bill is more complicated — and lengthier — than many of the others. Georgia House Bill 481 does more than call for a ban on abortion after a heartbeat can be detected, a provision most agree is clearly unconstitutional because it places an “undue burden” on women seeking to terminate a pregnancy, a standard put in place by the 1993 Supreme Court case Planned Parenthood v. Casey. The law also alters the definition of “natural personhood.” Under the Georgia measure, any fetus after six weeks would be legally considered a person.
For tax purposes, a fetus would be considered a dependent child.
The implications of broadening the definition of personhood could be “broad and far-reaching,” said Kwajelyn Jackson, executive director of the Feminist Women’s Health Center, an abortion clinic in Atlanta. The clinic is one of the named plaintiffs in the lawsuit against Georgia. A whole host of rights and policies could be affected, she said, and many of the changes prompted by this portion of the bill might not become clear until it takes effect.
The law, Jackson said, is written in such a way that the courts can throw out certain sections and keep the rest. The lawyers on the case, she said, have delayed the lawsuit in part because they want to figure out exactly how to refute the passages related to natural personhood, as well as how to best challenge the ban as a whole.
“The rest of the bill, apart from the ban, is messier, vague and written in a way that our attorneys want to be very careful and specific in navigating,” Jackson said.
She has no doubt that the court will declare the abortion ban unconstitutional; she’s less sure that the court will strike down the changes to the definition of personhood.
Still, going into the lawsuit, Jackson said she remains “wildly optimistic.”
“I believe in my gut that we are going to win,” she said. “It is not going to be easy; it’s going to be hard-fought, but we are going to win.”