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.