Opposing sides of a controversial Georgia abortion ban that had Hollywood up in arms last year faced off Monday in a court hearing where reproductive rights groups asked a judge to make a temporary ban on the so-called Heartbeat Bill permanent.
The legislation, signed last summer by Gov. Brian Kemp, was halted by a federal district court in October before going into effect. It criminalizes abortion when a fetal heartbeat is detectable, or at about six weeks, when most women don’t even know they’re pregnant. It also changes the definition of personhood under Georgia’s statute to include an embryo or fetus.
Georgia is a massive film and television production hub. A-list talent, major studios and the WGA threatened to boycott the state last summer, including Netflix, Disney, WarnerMedia, NBCUniversal, AMC Networks, Sony, and CBS and Viacom (which hadn’t yet merged) publicly questioning whether they would remain in Georgia if the bill went into force.
J.J. Abrams and Jordan Peele, Peter Chernin, Alyssa Milano, Christine Vachon and David Simon also spoke out. Some said they would donate to the American Civil Liberties Union, which is spearheading the legal challenge in the case, SisterSong v. Kemp.
The bill hasn’t been in the news much since it was blocked last fall, but it hasn’t disappeared. The good news for Georgia production is that attorneys for the state seemed to be less focused on the section banning abortion outright, spending little to no time Monday disputing the claim that the abortion ban is unconstitutional under the Supreme Court’s landmark 1973 Roe v Wade decision. But they are still trying to push though other parts of the bill that plaintiffs consider alarming, arguing that Judge Steve C. Jones of the Northern District could “sever” elements of the bill, allowing the personhood issue and other sections into force even without the ban.
“Regardless of the validity of the Act’s limitations on abortion, Plaintiffs have failed to demonstrate that the Court should enjoin a number of provisions … that relate to child support, tax benefits, population determinations, and other matters unrelated to abortion. The Court should enter judgment for Defendants on all provisions of the Act not specifically found unconstitutional,” according to attorneys for the state.
“If the Court finds any provision of the Act to be unconstitutional, the relief ordered should be limited to that specific provision, and all other provisions of the Act not challenged or found unconstitutional should be severed and allowed to take effect,” they said.
Elizabeth Watson of the ACLU, on behalf SisterSong Women of Color Reproductive Justice Collective, a Georgia reproductive rights group, said at the hearing today that the personhood change — which would indeed under the bill provide tax benefits and child support to pregnant women — is in bad faith and meant to result in a ban anyway.
“It would ban abortion by making fetuses or embryos persons … It would result in abortion being de facto banned,” she said. “With personhood, you’re treating [a fetus] like a child, making it eligible for child support like you would a child. It’s about treating a fetus like a person to ban abortion.”
“The ends may be admirable but here they are part of an unconstitutional law, and that is why the law has to be struck down in its entirety,” she added.
Jones, in his ruling last fall establishing the preliminary injunction, noted that: “The Fourteenth Amendment speaks only of persons ‘born or naturalized in the United States’ and the word has application only postnatally. Therefore, the court in Roe, ultimately concluded that the word ‘person’ does not include the unborn.”
Attorney Jeffrey Harris, arguing for the state, said opponents to the bill have offered “no citations” or proof that the personhood change was in bad faith and said that it would “help pregnant women take care of their unborn babies and families.”
Separately, Watson said a fetus with personhood status would also increase risks for physicians, who would have legal liability for two people, not one, when treating a pregnant woman. “It casts a wide net of criminal penalties,” she said. “A provider has no way of knowing if you help [one] how it would affect the other … and would have no way of knowing if [they] took unnecessary risk … Law enforcement would have unfettered discretion to interpret the law.”
The other major debate focused on the state’s challenge to SisterSong’s legal standing to bring the lawsuit in the first place. Judge Jones said he plans to await a Supreme Court ruling on a relevant case, likely later this month, before issuing his own. That case, Russo v. June Medical Services, asks if abortion providers can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and absent a “hindrance” to their patients’ ability to sue on their own behalf.
“SisterSong … lacks associational standing because it has not identified a single one of its members who would have standing in her own right (i.e., a pregnant woman seeking an abortion who claims she would be affected by the LIFE Act). Nor can SisterSong — which is not even regulated by the Act — assert standing based on its voluntary decisions about how to spend its resources. The other Plaintiffs — physicians and abortion providers — have also failed to establish third-party standing to bring this suit on behalf of their patients,” the state argued.
Watson noted that the requirements for associational standing, which she says SisterSong does have, are different from third-party standing.
However, that case may have some effect on this one, Stevens said. “I don’t think it would be wise to rule before they rule.”