Breaking News
More () »

Judges signal intent to wait on Supreme Court, but indicate some of Georgia abortion law could stand

Two of the three judges did indicate they felt some ancillary provisions of Georgia's "heartbeat" law could be upheld.

ATLANTA — Federal appeals court judges in Atlanta on Friday signaled they will wait and see how the U.S. Supreme Court decides an impending challenge to Roe v. Wade being brought by Mississippi before it decides the fate of Georgia's "heartbeat" abortion law.

The 11th Circuit Court of Appeals judges did, however, also indicate that regardless of the outcome in the consequential Mississippi case they could find that parts of Georgia's law, beyond its central restrictions on abortion, may be upheld.

Georgia's law, banning abortion at the point a doctor can detect a "fetal heartbeat," which is usually around six weeks and often before many women even realize they're pregnant, was ruled unconstitutional last year by a federal district court judge.

All parties were in near-universal agreement Friday in the appeal hearing that there was no need for the 11th Circuit to weigh in on that fundamental matter, with the Supreme Court set to review the substance of Roe when it hears a lawsuit against a Mississippi law restricting abortions on Dec. 1.

RELATED: Georgia 'heartbeat' bill could get Texas-style fix

"You're both saying you don't have a problem with that," 11th Circuit Chief Judge William H. Pryor said, referring to waiting to seeing what the Supreme Court does. "Don't you agree though that's really what we ought to do? It's not every day that we can allow the Supreme Court to do some work for us. It's nice when it happens. Isn't this one of those situations?"

Beyond that, the attorneys in the Georgia case, SisterSong v. Kemp, argued over whether certain provisions of the law - such as one extending a tax credit to pregnant mothers, and another providing for child support from absent fathers to expectant mothers - could be upheld.

The federal court held last year that the portions of the Georgia law not specifically restricting abortion were nonetheless tied to a central provision of the law that redefined a "natural person" to include unborn children - fetuses and embryos. 

Elizabeth Watson, the attorney for SisterSong - a women of color reproductive rights group - echoed that ruling and argued that because Georgia law "was meant to give legal recognition to fetuses and embryos by declaring them to be persons," beyond what federal law provides, it was right of the district court to block it in whole. 

She argued that while there may be some provisions of the law that on their own would be constitutional, that doesn't necessarily mean they can be separated from the broader purpose of the law.

"You can't enforce constitutional provisions pursuant to an unconstitutional law," Watson said. "The state has told us what its purpose is and it is to give more expansive state recognition of fetuses and embryos as a person than what federal law... provides."

She faced considerable pushback, though, with Judge Pryor and Judge Barbara Lagoa appearing to disagree on whether parts of the law could stand.

"How is it unconstitutional to make a father pay for the cost of a pregnancy that they were partially responsible for?" Judge Lagoa asked.

"Your honor, if that provision had been passed in isolation from the rest of this law it might be constitutional," Watson responded, before Judge Pryor interrupted her.

"Well that sounds like it's severable then," he said, referring to the legal doctrine of severability, which allows for parts of a law to remain intact even if other parts of it are struck down.

Later, speaking to Jeffrey Harris, the attorney representing the State of Georgia, Judge Pryor noted: "The fact (the law) has in some sense an anti-abortion purpose doesn't make it unconstitutional does it?"

"Of course," Harris agreed.

Before You Leave, Check This Out