Strict Georgia Abortion Law Faces ACLU Lawsuit

The Georgia arm of the American Civil Liberties Union (ACLU) has filed a lawsuit that will attempt to block a new, and more restrictive, abortion law passed by the state.  Set to take effect on January 1st, 2013, Georgia’s new abortion law prohibits abortions after 20 weeks with specific exceptions based on threats to the mother’s health. Claiming the medical exceptions are too narrow, the ACLU argues that the new law is Unconstitutional because it puts too high of a burden on women.

Current Legal Standard: Viability Matters

Setting the tone for abortion law in 1973, the Supreme Court’s decision in the landmark case Roe v Wade stands as one of the most popular and well-known cases in American history.  In Roe the Supreme Court determined that getting an abortion was protected under the right to privacy that derives from the Due Process Clause of the Fourteenth Amendment, which famously declares that no State shall “deprive any person of life, liberty, or property, without due process of law.”  Although “privacy” is not specifically mentioned, the Due Process Clause has been the source for the right to privacy which applies to several areas of American law, including abortion.

The Roe court did not prevent states from passing anti-abortion legislation, and introduced the term “viability” as the standard for when the state may protect the life of a fetus.  Viability basically means the time at which a fetus potentially could survive outside of its mother’s womb, and this time has adjusted with continued advances in medical science.  At the time of the Roe decision, viability was generally accepted to be between 24 – 27 weeks, but as of 2006, the youngest child to survive a premature birth was around 21 weeks old.

The Roe court found that the mother had a right to an abortion before viability, and a State could not infringe upon that right.  The law was adjusted slightly by the 1992 case Planned Parenthood v Casey which introduced the concept of the “undue burden.” The law now stands that a State cannot pass any law that puts an undue burden on the woman to get an abortion before viability.  Although “undue burden” is not specifically defined, any law that either makes it prohibitively expensive or difficult for a women to get an abortion before viability is Unconstitutional.

Is Georgia Abortion Law Unconstitutional?

The Georgia ACLU claims the law is overly restrictive by limiting abortions after 20 weeks, which it says is a pre-viability timeframe.  After 20 weeks, the law only allows abortions under specific conditions, and does not allow for procedures for women who have been raped, women who face medical harm outside the statutory definition of “medical emergency,” and women whose fetus has sever anomalies that fall outside the law’s definition of “medically futile pregnancy.”  Citing the Roe decision, the ACLU believes that its challenge will be successful because the law unduly infringes on a woman’s right to have an abortion as the Constitution allows.

Supporters of the law sing a different tune, and are looking forward to an opportunity to challenge the existing status of abortion law in the US.   Backers of a more strict anti-abortion legislation argue that 20 weeks represents a “fetal pain” restriction that should, in effect, change the definition of viability to reflect the time at which a fetus can feel pain.  Currently that time is determined to be 20 weeks, and Nebraska, Idaho, Indiana, Kansas, Oklahoma, Alabama, and North Carolina base their abortion law in whole or in part on the theory of fetal pain.  Georgia pro-life groups would like to challenge Roe v Wade and give states more control over abortion legislation that allows them to restrict the practice.

The ACLU’s lawsuit comes with a Motion asking the Court to prevent the law from going into effect until the case is decided, so there will be some action in the case fairly soon.  The case has been filed in a lower State Court, but it is likely the final decision will come down to the Georgia Supreme Court, or even a high ranking federal court.  If the law passes this Constitutional challenge, it could represent a turning point in American abortion law that allows states to have more control over when a woman can, or can’t, abort.

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