The Pulse on Georgia’s Life Act

Emily Matson, J.D. 

Chairwoman

Georgia Life Alliance   |  08 September 2022

According to the Georgia Department of Public Health (“DPH”), 34,988 unborn children were aborted in 2021. That is the highest number of abortions in Georgia since the DPH began collecting records of “induced terminations of pregnancy” in 1994.  For the statistical mind, the 2021 abortion numbers translate to the highest rate of abortion in Georgia since 2003 (10.3 per 1,000 female population).[1] One can only speculate as to the cause of this increase. Is it due to increased sexual activity surrounding COVID lockdowns? Has disregard for the life of the unborn become more callous? Has there been an increase in rape or incest? Or to be particularly cynical, is it possible the abortion industry ramped up its recruiting for one last profit-frenzy inside of Georgia’s state lines?     

In 2019, Georgia’s Governor Brian Kemp set his legislative agenda and essentially ramrodded the most far-reaching abortion restriction ever passed in our state: House Bill 481 titled “The LIFE Act.”  The law requires all physicians to determine whether there is a detectable human heartbeat prior to performing any abortion.  Correspondingly, if a heartbeat is detected, the physician cannot then terminate the pregnancy.   The law was signed by Governor Kemp on May 7, 2019 and was to take effect on January 1, 2020.  With few exceptions, the LIFE Act would have saved 66,236 unborn babies aborted in 2020 and 2021.[2]

However, abortion proponents and the industry mounted their attack immediately in the summer of 2019.  A flurry of Plaintiffs, primarily abortion clinics and individual physicians who perform abortions, filed for an injunction and declaratory judgment in the United States Federal District Court, Northern District of Georgia.[3] Noticeably, no individual woman or named group of women asserted their alleged rights to self-determination as Plaintiffs in the complaint.  After several weeks, Federal Judge Steve Jones issued an order granting the Plaintiffs’ preliminary motion for an injunction against the law.  Judge Jones initially ruled that both Roe v. Wade and Planned Parenthood v. Casey were binding precedent upon him, that Plaintiffs would likely succeed based on those precedents, and the LIFE Act prohibited abortions prior to viability and beyond the framework of Roe and Casey.  In July of 2020, Judge Jones denied the State’s Motion for Summary Judgment and granted a permanent injunction against the enforcement of the LIFE Act.  Georgia Attorney General Chris Carr immediately appealed and the case went to the 11th Circuit Court of Appeals.  In September of 2021, oral arguments were made by the State of Georgia and the abortion proponents, and the Appellate Court focused its inquiry on whether or not the pending Dobbs case before the U.S. Supreme Court would have any bearing on the LIFE Act. Counsel for all parties stipulated that the Dobbs’ decision was likely determinative of whether or not the LIFE Act would be enforceable and Judge William Pryor entered a one-line order staying the appeal “pending a decision of the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organization.”

All eyes (and hopes) remained on the outcome of the Dobbs’ decision until a draft of the decision was leaked on May 2, 2022.  Undoubtedly, the abortion industry shifted gears, knowing the conservative 11th Circuit would take the likely route of affirming the Dobbs’ decision and finding that without Roe and Casey, the LIFE Act falls exactly within the state’s interest to protect unborn children from being terminated.  The dominoes fell in predictable order. The U.S. Supreme Court overturned Roe v. Wade  on June 24, 2022 and on July 20, 2022, the 11th Circuit Court of Appeals issued its order reversing the District Court’s injunction and remanding the case for a judgment in favor of the Georgia state officials.  Writing for the full panel, Judge Pryor issued the following synopsis:

Georgia’s prohibition on abortions after a detectable human heartbeat is rational. Respect for and preservation of prenatal life at all stages of development is a legitimate interest.  The Georgia Legislature’s findings acknowledge a state interest in providing full legal recognition for an unborn child. That legitimate state interest provides a rational basis for and justifies the Act. (Citations omitted).[4]

But the fight didn’t stop there.  On July 26, 2022, the same Plaintiffs filed a new 354-page complaint in Fulton County Superior Court.[5]  Thankfully, the initial motion for injunction was denied by Superior Court Judge Robert McBurney on August 15, 2022. 

Among other false allegations, the Plaintiffs’ new Complaint contends the LIFE Act forces “pregnancy and childbirth upon countless Georgians, and at the same time prohibit[s] medically appropriate care for patients suffering pregnancy complications and miscarriages.”   At its core, the new lawsuit seeks to establish in Georgia law what has now been cut and shredded from the United States Supreme Court precedent. 

Akin to the federal Constitution, the Georgia constitution declares in Article 1, “No person shall be deprived of life, liberty, or property except by due process of law.”  It is within that provision and Georgia case law discussing the “penumbras and emanations” of Georgia’s right to privacy that the abortion industry hopes to find legal protection to continue killing tens of thousands of unborn children.  But the ACLU, Sistersong, and Feminist Women’s Health read the Georgia Constitution with one eye closed, failing to see the absolute protection for “life.”  They allege the law defining when an unborn child can be protected from an abortion is vague.  They also argue that the State is not authorized to intrude on the private life of an individual and restrict what she (or “he”) does in their private lives with their bodies. Somehow, there is a complete disconnect and amnesia with regard to numerous laws which likewise restrict actions in private such as prostitution, human trafficking, manufacturing, and ingesting illicit substances – all of which may or may not occur inside a private home and between adults who are consenting or who may be presented as consenting. But laws prohibiting human trafficking, child molestation, and feticide have always recognized the legitimate interest the state has in protecting the weaker, more vulnerable person. Dobbs decided that the State of Georgia may once again protect the life of the vulnerable, weak unborn child even while restricting the options and decisions available to the mother. 

So where are we now? Waging the battle with no end in sight.  According to Atlanta Magazine, “Georgia has landed squarely in the abortion battle’s next frontier.”[6]  While the LIFE Act is fully effective and it is criminal for any medical personnel to perform an abortion in Georgia which is in violation of the Act, questions abound.  Physicians are seeking clarity and protection between the lines of medically futile pregnancies, miscarriages, and criminal allegations of rape or incest.  Pro-life advocates and organizations are also being pinned down - are we willing to help with 35,000 children who will be born this year?  Will we hold birthday parties, support vulnerable mothers, donate diapers and time, and join with families struggling to make it?   Let us answer with a resounding and joyful “yes!” that call to this new culture of life.

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Emily Matson is an attorney in Rome, Georgia, mother of three children and wife to Patrick, and in her spare time - the Chairwoman of Georgia Life Alliance.  Support our efforts to grow a culture of life in Georgia by going to www.georgialifealliance.com 

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[1] Georgia Department of Public Health, Office of Health Indicators for Planning - OASIS (state.ga.us)

[2] Georgia Department of Public Health, Office of Health Indicators for Planning - OASIS (state.ga.us)

[3] SisterSong Women of Color Reproductive Justice Collective v. Kemp, 1:19-cv-02973 – CourtListener.com

[4] Sistersong Women of Color Reproductive Justice Collective et al. v. Kemp, Case No. 20-13024 at p. 11 (U.S. 11th Cir. 2022).

[5] SisterSong v. Georgia: Complaint | American Civil Liberties Union (aclu.org)

[6] Georgia’s “fetal personhood” statute is uncharted territory - Atlanta Magazine 8/23/22

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