WASHINGTON — A two-year fight over the constitutionality of Georgia’s six-week abortion ban finally reached a federal appeals court on Friday. But a judge kicked off arguments by asking if the court should put the case on hold and wait to see what the US Supreme Court does in another abortion case that’s before the justices now.
The Supreme Court this fall will take up a fight over a Mississippi law that bans abortions after 15 weeks of pregnancy. The big-picture question before the justices is whether all bans before a fetus can survive outside the womb, typically around 24 weeks at the earliest, are unconstitutional. Their decision not only will shape future efforts to cut off abortion access nationwide, but also pending fights over anti-abortion laws that Georgia and other Republican-led states have passed and are eager to enforce.
A ruling in favor of Mississippi would give the green light to Republican-led states hoping to impose sweeping abortion bans at earlier phases of pregnancy; most people obtain an abortion during the first trimester. But lawmakers are also planning for a potential future where the Supreme Court leaves long-standing abortion protections in place, exploring other types of bills that would restrict access and continuing to defend ones they’ve already passed in court.
In the Georgia case, the US Court of Appeals for the 11th Circuit appeared poised to wait for the justices. The 8th Circuit earlier this month paused a case about an Arkansas law that would ban all abortions except when necessary to save the pregnant person’s life, citing the imminent Supreme Court activity. A lawsuit challenging South Carolina’s six-week abortion ban is before the 4th Circuit and hasn’t been argued yet. Tennessee is asking the 6th Circuit to revisit an earlier decision that blocked the state’s six-week ban. Oklahoma is defending a cluster of laws due to take effect Nov. 1, including a prohibition against nearly all abortions.
The Supreme Court is scheduled to hear the Mississippi case, Dobbs v. Jackson Women’s Health Organization, on Dec. 1.
“The question presented as I understand it in Dobbs, no matter which way the Supreme Court answers it, affirmatively or negatively, it seems to me that it's going to bear directly on the correct outcome of this controversy,” 11th Circuit Chief Judge Bill Pryor said on Friday in the Georgia case.
These pending cases offer a glimpse of what’s to come regardless of how the Supreme Court rules. For decades, the court’s precedent has been that states cannot prohibit abortions before a fetus is viable. Lower court judges across the country have relied on that in striking down early-term bans. Any new Supreme Court decision that opens the door to laws that target abortion access before viability would immediately give states like Georgia a huge boost defending their laws in court. Abortion providers and civil rights groups are still likely to look for ways to challenge early-term abortion bans in court, but it will become harder for them to win.
Georgia’s law, passed in 2019, is one of a series of similar laws passed by Republican-led state legislatures tying an abortion ban to the time when fetal cardiac activity can be detected, usually around the sixth week of a pregnancy. Pregnancy terms are counted from the first day of a person's most recent period, so week six is typically two weeks after a missed period, which is when many people realize they're pregnant. Early-term state abortion bans are often referred to as “heartbeat” laws, but the term is misleading, since a fetus’s heart valves haven’t formed yet; an ultrasound at that stage is detecting electrical activity.
Even if the justices keep the viability cutoff in place, though, it won’t end state efforts to restrict abortion access. The Georgia case also shows what that could look like. Georgia is arguing that even if the state loses on the constitutionality of the six-week ban, the rest of the law, HB 481, should stand. It includes a provision that defines a fetus as a “natural person” as soon as fetal cardiac activity is detected — language that’s part of an ongoing effort by anti-abortion advocates to give fetuses legal rights.
In the Georgia case, the challengers are arguing that the “natural person” language is unconstitutionally vague, since it’s not clear how other state laws would apply to fetuses and how those could be enforced. Their position is that the law operates as an interconnected whole, so if the six-week ban is struck down, the entire law must fall. Pryor and Judge Barbara Lagoa — two prominent conservative judges nominated by former presidents George W. Bush and Donald Trump, respectively — signaled they were open to Georgia’s position and leaving at least some of the law intact.
There’s Texas’s effort to avoid any across-the-board challenge to its six-week abortion ban by structuring the law so that private individuals, and not state law enforcement, are responsible for enforcing it. Abortion providers and the Justice Department are challenging SB 8 as unconstitutional, but will first have to convince courts — and potentially the Supreme Court — that they can bring a lawsuit at all. Defenders of SB 8 contend the only way to raise the constitutionality argument is for individuals to bring it up as a defense if they’re sued; in the meantime, the law has all but halted abortions statewide.
Other Republican-led states are continuing to explore a host of options for anti-abortion legislation, with an eye to how various types of laws will fare depending on what the Supreme Court decides. Eleven states have passed so-called trigger laws that feature abortion bans that will take effect if the Supreme Court reverses the abortion protections spelled out in Roe v. Wade, according to the Guttmacher Institute, an abortion rights research and advocacy group that tracks state legislation.
Other legislative efforts to restrict abortion access have included mandatory waiting periods, licensing restrictions for providers, limits on how people can obtain abortion pills, prohibitions on specific types of surgical abortion procedures, and bans on abortions based on a Down syndrome diagnosis in a fetus.
Republican lawmakers in Florida are considering their own Roe-dependent trigger law. They're also exploring whether there are bills they could try to pass that would provide a vehicle for the state's conservative-leaning courts to revisit a privacy clause in Florida’s state constitution that's stood in the way of anti-abortion bills in the past. The Florida Supreme Court ruled that the clause protects a person’s right to decide personal and medical decisions. But anti-abortion advocates argue the amendment, passed in 1980, was intended to protect an individual’s informational privacy, not abortion.
State lawmakers haven’t decided on what they’ll introduce in the new session that starts next January, but the prospect of a Texas-style bill looks bleak after Florida’s Senate President Wilton Simpson said he does not support how the law provides financial incentives for private citizens to report on one another.
This week, Republican state Rep. Webster Barnaby proposed the “Florida Heartbeat Act,” an anti-abortion proposal that would ban most abortions around six weeks in Florida, fine physicians $10,000 for every abortion they perform outside of the potential bill’s parameters, and deputize private citizens to enforce the law. But the proposal is likely to go nowhere since the bill mirrors Texas's civil enforcement measure that has been criticized by Simpson and Gov. Ron DeSantis’s office. Top lawmakers in Florida also want women legislators to introduce whatever anti-abortion bill the state passes in the coming session, according to a person involved in the legislative processes in Florida.