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Georgia’s LIFE Act Is Now Enforceable

In an ongoing effort to keep our members informed on compliance issues related to the Supreme Court’s decision to overturn Roe V. Wade, the Georgia Academy has engaged the Georgia law firm, Hall, Booth, Smith, to offer ongoing education and information to keep current on Georgia law related to this issue.

Georgia’s LIFE Act is now in effect and enforceable. The law, which was passed in May 2019 and imposed new and various regulations on abortion, had been enjoined by a federal district court since October 2019 as being unconstitutional under federal law. On July 20, 2022, however, the Eleventh Circuit Court of Appeals issued its decision in SisterSong Women of Color Reproductive Justice Collective v. Kemp—the appeal from the lower court’s decision declaring the law unconstitutional. Ultimately, the Eleventh Circuit reversed the district court and upheld the constitutionality of the law, and, by separate order entered later that day, the Eleventh Circuit stayed the district court’s injunction so that the law could take immediate effect.

A summary of the Eleventh Circuit’s decision follows along with some prospective thoughts about the law moving forward. At bottom, the law is now fully effective and enforceable. Therefore, every medical professional should become immediately knowledgeable about the law and how it may affect one’s practice.

           A. The Eleventh Circuit’s Decision

            The timing and substance of the Eleventh Circuit’s decision did not come as much of a surprise. After the Supreme Court’s recent decision in Dobbs, the challengers to the law were left with few arguments. In less than three pages, the Eleventh Circuit quickly dispatched with the law’s constitutionality in a post-Dobbs world. The Eleventh Circuit cited Dobbs and explained that the law’s regulation on abortion was rationally related to the State’s interest in providing full recognition to the life of an “unborn child.” In fact, the challengers to the law largely conceded this part of their argument, given the Supreme Court’s reasoning in Dobbs.

            The Eleventh Circuit spent most of its discussion analyzing the void-for-vagueness issues. This was the alternative basis upon which the district court held the law unconstitutional. The Eleventh Circuit quickly explained that the law was not void on its face based on the re-definition of the term “natural person”  throughout Georgia’s code so as to include an “unborn child.” The Eleventh Circuit reasoned that this argument was also foreclosed after Dobbs and concluded that the challengers could not mount a facial challenge, which would have completely barred the law in all its potential applications. Any argument that specific code sections were rendered unconstitutionally vague, the Eleventh Circuit explained, must be brought in separate proceedings challenging those particular applications of the law.

            In a somewhat surprising move, the Eleventh Circuit entered an order later that day making the law fully enforceable. Typically, there is a brief gap between the issuance of an appellate decision and the effective date of the decision; however, the Eleventh Circuit’s decision left nothing else for the district court to do on the merits other than to formally dissolve the injunction. Thus, while a bit out of the ordinary the move was not necessarily unprecedented. And given the exceedingly complex questions surrounding the potential liability for violations of a once-enjoined law, the Eleventh Circuit’s decision arguably provides at least some clarity and notice to all that their conduct should immediately conform with the law.

          B. What to Expect Moving Forward

            Federal litigation surrounding the constitutionality of the LIFE Act is largely over. The challengers in the case do have the ability to appeal the Eleventh Circuit’s decision to the Supreme Court of the United States; however, the law would almost certainly remain in effect during that time, and it is unlikely that the Supreme Court would consider the case, given the decision in Dobbs. But this does not mean that constitutional challenges to the law are over.

            It is important to understand that the federal litigation challenging the law was based on federal law. Often, many forget that states have their own constitutions, which provide different constitutional rules than the U.S. Constitution does. Recently, the Supreme Court of Georgia has issued several decisions reiterating that the Georgia Constitution provides greater protection for certain rights than do analogous provisions in the U.S. Constitution. Some lawyers and professors have argued that, despite the law’s validity under the U.S. Constitution, the law still violates certain provisions of the Georgia Constitution, including what appears to be a much broader understanding of the right to privacy. Thus, state-court litigation challenging the law under the Georgia Constitution may soon arise, and the law could be declared unconstitutional on this separate and independent basis.

            Other forms of litigation may also arise in federal or state court beyond challenges to the law’s constitutionality, including litigation over other laws in different states that may impact Georgia’s law. For example, just a few weeks after Dobbs, the Centers for Medicare and Medicaid Services issued specific guidance interpreting the Emergency Medical Treatment and Labor Act (EMTALA) as preempting state law that directly conflicts with EMTALA’s mandates in the context of emergency medical care for pregnant women. The Food and Drug Administration has also taken steps to provide clarity with respect to Mifepristone. Thus, further litigation in these areas is expected, and even if not directly related to the LIFE Act this could still have downstream effects impacting the law in Georgia.

            In sum, Georgia’s LIFE Act is now in effect and fully enforceable. Many have noted the law is extraordinarily vague in important respects and therefore does not provide sufficient guidance on what is or is not permitted. These are valid concerns. Unfortunately, greater clarity will not be achieved immediately. As briefly noted above, the law (in Georgia and across the country) is in a state of flux and will remain in a state of flux for some time. Medical professionals should continue adhering to the standard of care in their treatment of patients, and they should remain up-to-date on specific medical and legal guidance.

Disclaimer: This article does not constitute legal advice and is for informational purposes only. Neither the author nor the author’s law firm represents you, unless a specific engagement between you and the lawyer/firm has been consummated and only then to the extent of such engagement. The information provided herein may no longer be accurate following publication.


Georgia Academy Provides Information for Members following Supreme Court Reversal of Roe v. Wade

Following the reversal of Roe v. Wade, the Georgia Academy issued the following statement:

The ruling by the US Supreme Court related to Roe V. Wade will undoubtedly cause confusion and concern for many Georgians and family physicians. While it will take time to fully understand how this ruling and existing Georgia laws will ultimately affect patient care, we know our members will continue counseling their patients to make medical decisions together about what care is best for them.

The Georgia Academy has a long-standing policy to oppose any legislation or rule that would criminalize care.  We will keep you informed about the potential changing Georgia healthcare landscape with the SCOTUS ruling.  The GAFP will continue to monitor and provide education for our members if the SCOTUS ruling changes the current legal practice of medicine in Georgia.

The American Academy also issued a statement and posted additional information to members which can be found here:

To offer ongoing education, the GAFP engaged the Georgia law firm, Hall, Booth, and Smith and held a Question-and-Answer Session on Legal Implications of the reversal in Georgia.  This webinar was held for over 70 members on Tuesday, June 29th.  Pearson Cunningham, associate with Hall, Booth, and Smith developed an overview of the Supreme Court Ruling and pending litigation in Georgia.  

Additional information will be provided to our members as changes in Georgia health law occurs.


The Supreme Court’s Decision in Dobbs and Georgia’s LIFE Act

On June 24, 2022, the Supreme Court of the United States issued its decision in Dobbs v. Jackson Whole Women’s Health Org. The decision will bring major changes to the law surrounding regulations on abortions in Georgia and across the country. The Supreme Court’s decision and the current status of Georgia’s “LIFE Act” is summarized below.

A. The Dobbs Decision

In Dobbs v. Jackson Whole Women’s Health Org., the Supreme Court voted 6-3 to uphold the constitutionality of the State of Mississippi’s Gestational Age Act, and by a vote of 5-4, the Court overruled Roe v. Wade and Planned Parenthood v. Casey.

The majority opinion was authored by Justice Samuel Alito and joined by Justices Thomas, Gorsuch, Kavanaugh, and Barret. Chief Justice Roberts wrote an opinion concurring in the judgment but disapproving of the Court’s overruling of Roe and Casey. Justices Breyer, Kagan, and Sotomayor wrote a joint dissent.

In Roe, the Supreme Court held that the Fourteenth Amendment’s Due Process clause protects a women’s right to obtain an abortion prior to fetal viability. In Casey, the Supreme Court reaffirmed what it called Roe’s central holding and established that abortion restrictions may not impose an “undue burden” on a woman’s right to obtain an abortion prior to viability. The decision in Dobbs overrules those decisions and others.

Moving forward, a state’s regulation of abortion will pass constitutional muster (as a matter of federal law) so long as it is rationally related to a legitimate state interest. Such laws, the Court explained in Dobbs, will be “entitled to a strong presumption of validity.” This “rational basis” test, which the Court announced as the new framework for analyzing constitutional challenges to abortion laws, is almost always satisfied in favor of the state regulation. In other words, courts have rarely found a law to be unconstitutional under the rational basis test, in other contexts. This is why the opinion has been described as “returning the issue” to the “states.”

This is not to say that abortion regulations will necessarily be found valid in every circumstance. Other, independent reasons may exist for a certain law to be found invalid. For example, a criminal prohibition on abortion may be found invalid on the grounds that the criminal prohibition itself is unconstitutional vague. Generally speaking, though, Dobbs means that states will have broad latitude when legislating on the subject.

B. Georgia HB 481 (the “LIFE Act’)

 In 2019, the Georgia General Assembly passed HB 481 (the “LIFE Act”), which was enacted into law by Governor Brian Kemp on May 7, 2019. See 2019 Ga. Laws 711. The Act amends numerous provisions of Georgia Code on various topics, but importantly, the Act limits abortions performed in Georgia after the point in which a heartbeat is detectable. The Act imposes criminal and civil liability to enforce its provisions. Licensed medical professionals can also face professional discipline for failures to adhere to the Act.

The Act defines “abortion” broadly as “the act of using, prescribing, or administering any instrument, substance, device or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child.” The Act specifies, however, that an “abortion” does not include procedures performed for the purpose of “[r]emoving a dead unborn child caused by spontaneous abortion,” a term the Act specifically defines, or procedures performed for the purpose of “[r]emoving an ectopic pregnancy.”

The Act provides three exceptions to what would otherwise be a prohibited “abortion.” Those exceptions are as follows:

(1) when a “physician determines, in reasonable medical judgment, that a medical emergency exists”;

(2) in cases of rape or incest so long as (a) the “probable gestational age” (as that term is defined in O.C.G.A. §  31-9B-1) of the unborn child is 20 weeks or less, and (b) “an official police report has been filed alleging the offense of rape or incest”; or

(3) when a “physician determines, in reasonable medical judgment, that the pregnancy is medically futile.”

The Act specifically defines the terms “medical emergency” and “medically futile.”

A violation of the Act is punishable by imprisonment of one to ten years. Regarding a criminal prosecution, the Act provides an affirmative defense to a medical professional where the medical treatment provided resulted in the accidental or unintentional injury or death to the “unborn child,” and it provides an affirmative defense to the woman seeking the abortion where she reasonably believed the procedure was the only way to prevent a medical emergency.

Other sections of the Act amend Georgia’s informed consent and reporting statutes in various ways to include additional materials and information that must be provided prior to the procedure being performed. And the Act contains further requirements and conditions on performing abortions in Georgia.

Regarding civil liability, the Act provides that a woman upon whom an abortion is performed in violation of the Act shall be entitled to institute a civil action against the person who engaged in such violation.

C. Status of Litigation over the LIFE Act

Prior to the Act’s effective date, various organizations sued to enjoin enforcement of the Act in June 2019. The United States District Court for the Northern District of Georgia preliminarily enjoined the Act on October 1, 2019. In July 2020, the district court permanently enjoined the Act. The State appealed the decision to the United States Circuit Court of Appeals for the Eleventh Circuit. Litigation progressed at the Eleventh Circuit through fall 2021; however, on September 27, 2021, the Eleventh Circuit stayed the case pending the Supreme Court’s decision in Dobbs.

The case has remained stayed, and thus, the injunction in place, since. Recently, however, the Eleventh Circuit ordered the parties to file supplemental briefs (due on or before July 15, 2022) addressing the effect of the Dobbs decision on the case. A decision from the Eleventh Circuit is not expected before the parties’ deadline to file the supplemental briefs, but it is impossible to know for certain when a decision will be issued.

D. Dobbs, the LIFE Act, and the state of the law moving forward

Technically, the LIFE Act took effect on January 1, 2020; however, the Act has been enjoined since before then, and it remains enjoined at the present time, until the Eleventh Circuit issues a decision or otherwise alters the status quo.

What this means is that the specific parties against whom the injunction has been issued (various state and local officials) may not presently enforce the Act. The injunction is still in place at the present time with respect to those parties. This does not mean that such officials would be prohibited from enforcing the Act as soon as the injunction is lifted—including for conduct occurring in the interim. Whether liability can be validly imposed under such circumstances is a very difficult question of law, for which there are not clear and direct answers. Therefore, medical professionals in Georgia should become immediately familiar with the Act; how it affects their practice; and all should remain up-to-date on specific medical and legal guidance.

While the Eleventh Circuit’s decision can be expected soon, it is impossible to know what the decision will say with respect to the validity of the Act moving forward. The district court’s decision declaring the LIFE Act unconstitutional was premised on two distinct holdings: (1) that the law infringed on the now-overturned liberty interest in obtaining an abortion; and (2) that the law was unconstitutionally vague with respect to how it re-defined the term “person” throughout the Georgia Code so as to include an “unborn child.”

The decision in Dobbs means that the Eleventh Circuit will very likely reverse the district court on the first point. The second point, however, was not at issue in Dobbs, and thus, the Eleventh Circuit must still address this in its forthcoming decision. Furthermore, Dobbs is a decision about federal constitutional law. Dobbs says nothing about the constitutionality of abortion regulations under state constitutional law. Thus, despite the decision in Dobbs (and whatever the  Eleventh Circuit ultimately concludes), future litigation in state court will likely arise under Georgia’s constitution.

Unfortunately, the law will likely remain in a state of flux for some time. Over time, these issues will hopefully be resolved, and there will be greater clarity for all. Medical professionals should continue adhering to the standard of care in their treatment of patients, and they should remain up-to-date on specific medical and legal guidance.

Disclaimer: This article does not constitute legal advice and is for informational purposes only. Neither the author nor the author’s law firm represents you, unless a specific engagement between you and the lawyer/firm has been consummated and only then to the extent of such engagement. The information provided herein may no longer be accurate following publication.

Precepting in Georgia – New Initiative through the Georgia Statewide AHEC Network

The Georgia Statewide AHEC Network hosted focus groups in August of 2021 with topics of discussion including preceptor resources, faculty development, best practices, and mentorship. 

We are now considering hosting a webinar series for preceptors with topics of interest identified by our community-based providers. We are also exploring a Preceptor Mentorship Program which was identified in our focus groups. We value input from members of the Georgia Academy of Family Physicians to assist us in offering something of value to you.   

Precepting in Georgia – New Initiative through the Georgia Statewide AHEC Network    

Survey link: 

Click here to learn more about Precepting in Georgia and Available State Income Tax Credit for Participation: