Opponents of Georgia’s ban on most abortions after 20 weeks since fertilization have found comfort—but not strategy—in a federal appeals court’s recent ruling against a similar law in Arizona.
Rather than relying on the federal principles that felled Arizona’s law, the Georgia plaintiffs argue that the state constitution’s right to privacy protects a right to abortion. If it’s successful, the challenge could etch a constitutional right to abortion in Georgia that would stand even if the U.S. Supreme Court ever overturns Roe v. Wade.
The American Civil Liberties Union, which played a role in the Arizona case, represents three obstetricians practicing in DeKalb and Fulton counties. They contend that the Georgia law prohibiting abortions beyond 20 weeks post-fertilization—except for narrowly defined medical emergencies—would violate state constitutional rights to privacy, equal protection and due process. Their complaint, filed last fall, sues Governor Nathan Deal, Attorney General Sam Olens, Fulton County District Attorney Paul Howard, DeKalb County District Attorney Robert James, state Department of Public Health Commissioner Brenda Fitzgerald and officers and members of the Georgia Composite Medical Board.
Chad Brock, staff attorney at the ACLU Foundation of Georgia, said the organization decided to file its challenge to the Georgia law in Fulton County Superior Court instead of federal court because the Georgia Supreme Court has repeatedly held that the state constitution provides greater privacy protections than the U.S. Constitution.
"We had already set up a federal challenge to the 20-week law in Arizona. We took a closer look at the long line of precedent in Georgia and found that consistently, through the 20th century, the Georgia Supreme Court stated that the Georgia Constitution was at the forefront of guaranteeing a constitutional right to privacy," Brock said.
Georgia’s right to privacy appears to be "broader and more protective" than the federal right, Brock said.
"In a long line of reproductive right cases going back to Roe, the U.S. Supreme Court has consistently held, under the right to privacy, women have a right to terminate pregnancy pre-viability. If the state court is going to be consistent with prior precedent, then it will have to find that, of course, the state constitutional right to privacy also protects a woman’s right to abortion," he said.
The ACLU’s privacy argument in Lathrop v. Deal is rooted in the 1905 Georgia Supreme Court case Pavesich v. New England Life Ins., 122 Ga. 190, in which a man sued over unauthorized use of his image in a newspaper advertisement. The Supreme Court held that the state right to privacy is immutable and derived from natural law.
"The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence," Justice Andrew J. Cobb wrote in the court’s unanimous opinion.
With this reasoning, the ACLU argues, Georgia was a pioneer among states recognizing privacy as a fundamental right. Pavesich was crucial to the state high court’s decision in Powell v. State, 270 Ga. 327 (1998), in which the court struck down Georgia’s criminalization of sodomy almost five years before the U.S. high court did the same.
"The broad constitutional right ‘to be let alone’ and to ‘liberty of choice as to [one's] manner of life’ recognized in Pavesich and reaffirmed in Powell also protects the right to make medical decisions free from unwarranted government interference," the complaint stated.
While the May 21 decision by the U.S. Court of Appeals for the Ninth Circuit to declare Arizona’s law unconstitutional is not binding on Georgia, it may provide fodder for persuasion. In the panel’s unanimous decision, Judge Marsha Berzon wrote, "A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable. A prohibition on the exercise of that right is per se unconstitutional."
Not so fast, said Nels Peterson, solicitor for the Office of the Attorney General.
"The plaintiffs in Lathrop have intentionally brought only state constitutional claims—not the federal constitutional claims at issue before the Ninth Circuit. Before there can be any analysis of whether the Arizona decision is even relevant to our case, Plaintiffs first have to convince a court to conclude that the Georgia Constitution contains a right to abortion separate and independent from the federal constitutional right recognized in Roe and its progeny. We don’t believe that it does," Peterson said in a written statement.
While the attorney general’s office’s briefs have not responded directly to the ACLU’s privacy argument, the office notes that Georgia’s law may ban some abortions that would be performed at 20 weeks but not all.
Georgia legislators approved the 20-week ban, House Bill 954, during the General Assembly’s 2012 session. The legislation was slated to go into effect in January, but Fulton Superior Court Judge Doris Downs granted a temporary injunction halting its enforcement.
In briefs, the ACLU argued that the ban would force some women to carry their pregnancies to term against their will "even where the pregnancy jeopardizes their health or where the fetus has been diagnosed with a severe or potentially lethal anomaly."
"[T]he Act will also rush women and families who have learned of a fetal anomaly to decide before 20 weeks whether to continue the pregnancy. Some women may terminate before 20 weeks, so as not to lose the ability to do so after 20 weeks, and of those some may have—given more time—decided to continue their pregnancies," the complaint stated.
"The Act presents physicians, including Plaintiffs, with an untenable choice: to face criminal prosecution and up to 10 years imprisonment, as well as disciplinary and licensing sanctions, for continuing to provide abortion care in accordance with their best medical judgment or to stop providing the critical care their patients seek," the complaint adds.
The state said in its defenses and answer brief, filed Feb. 5, "[T]here is divergent medical evidence regarding when a fetus is considered to be ‘viable,’ which is understood to mean that the fetus has a reasonable likelihood to survive outside the womb of a woman."
While neither the federal nor the state high courts have defined the point of viability, it is generally understood in the medical community to be around the 23rd or 24th week of pregnancy. Bans in Arizona, Georgia and several other states were grounded on the claim that there is evidence a fetus can feel pain by 20 weeks post-fertilization.
The Law Department filed a motion to dismiss what it called ancillary claims on Feb. 19. The ACLU’s challenge also asserted that giving district attorneys access to women’s medical records was unconstitutional. The attorney general’s office countered that the records access law has been on the books since 1973 and that the plaintiffs could show no imminent harm.
The case is Lathrop v. Deal, No. 2012-CV-224423.