Sistersong Women of Color Reprod. Justice Collective v. Kemp

• Decision Date: 13 July 2020
• Docket Number: CIVIL ACTION FILE No. 1:19-cv-02973-SCJ
• Citation: 472 F.Supp.3d 1297
• Parties: SISTERSONG WOMEN OF COLOR REPRODUCTIVE JUSTICE COLLECTIVE, on behalf of itself and its members, et al., Plaintiffs, v. Brian KEMP, Governor of the State of Georgia, in his official capacity, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

472 F.Supp.3d 1297

SISTERSONG WOMEN OF COLOR REPRODUCTIVE JUSTICE COLLECTIVE, on behalf of itself and its members, et al., Plaintiffs,

v.Brian KEMP, Governor of the State of Georgia, in his official capacity, et al., Defendants.

CIVIL ACTION FILE No. 1:19-cv-02973-SCJ

United States District Court, N.D. Georgia, Atlanta Division.

Signed July 13, 2020

Brigitte Amiri, Pro Hac Vice, Elizabeth Karin Watson, Pro Hac Vice, Rebecca Ann Chan, Pro Hac Vice, Susan Talcott Camp, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Sean Young, ACLU of Georgia Foundation, Atlanta, GA, for Plaintiff SisterSong Women of Color Reproductive Justice Collective.

Emily B. Nestler, United States Departement of Justice, Washington, DC, Julie Rikelman, Kirby Tyrrell, Center for Reproductive Rights, New York, NY, Sean Young, ACLU of Georgia Foundation, Atlanta, GA, for Plaintiffs Feminist Women's Health Center, Columbus Women's Health Organization, P.C.

Carrie Y. Flaxman, Pro Hac Vice, Planned Parenthood Federation of America, Washington, DC, Sean Young, ACLU of Georgia Foundation, Atlanta, GA, Susan Lambiase, Pro Hac Vice, Planned Parenthood Federation of America, New York, NY, for Plaintiff Planned Parenthood Southeast, Inc.

Carrie Y. Flaxman, Pro Hac Vice, Planned Parenthood Federation of America, Washington, DC, Elizabeth Karin Watson, Pro Hac Vice, Rebecca Ann Chan, Pro Hac Vice, Susan Talcott Camp, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Sean Young, ACLU of Georgia Foundation, Atlanta, GA, for Plaintiff Atlanta Comprehensive Wellness Clinic.

Elizabeth Karin Watson, Pro Hac Vice, Rebecca Ann Chan, Pro Hac Vice, Susan Talcott Camp, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Sean Young, ACLU of Georgia Foundation, Atlanta, GA, for Plaintiffs Atlanta Women's Medical Center, FemHealth USA, Summit Medical Associates, P.C., Carrie Cwiak, Lisa Haddad, Eva Lathrop.

Jeffrey Matthew Harris, Steven Christopher Begakis, Consovoy McCarthy PLLC, Arlington, VA, Patrick Strawbridge, Consovoy McCarthy PLLC, Boston, MA, Andrew Alan Pinson, Office of Attorney General, Atlanta, GA, for Defendants Brian Kemp, Christopher M. Carr.

Andrew Alan Pinson, Office of Attorney General, Atlanta, GA, Jeffrey Matthew Harris, Consovoy McCarthy PLLC, Arlington, VA, for Defendants Kathleen Toomey, John S. Antalis, Gretchen Collins, Debi Dalton, E. Daniel DeLoach, Charmaine Faucher, Michael Fowler, Sr., Alexander S. Gross, Thomas Hardin, Jr., Rob Law, Matthew W. Norman, David W. Retterbush, Andrew Reisman, Joe Sam Robinson, Barby J. Simmons, Richard L. Weil, LaSharn Hughes, Julia Slater, Danny Porter, Meg Heap.

Jeffrey Matthew Harris, Consovoy McCarthy PLLC, Arlington, VA, Joe Dally Whitley, Sarah Margaret Carrier, Linda Ann Klein, Steven G. Hall, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Atlanta, GA, for Defendant Paul L. Howard, Jr.

Erin Marie Morrissey Victoria, Ian Kyle Byrnside, Jacqueline Tandy Menk, S. Derek Bauer, Baker Hostetler, LLP, Atlanta, GA, for Defendant Sherry Boston.

Jeffrey Matthew Harris, Consovoy McCarthy PLLC, Arlington, VA, for Defendant Joyette M. Holmes.

ORDER

STEVE C. JONES, UNITED STATES DISTRICT JUDGE

This matter concerns the constitutionality of Georgia House Bill 481 ("H.B. 481"), also known as the Living Infants Fairness and Equality ("LIFE") Act. H.B. 481 § 1, 155th Gen. Assemb., Reg. Sess. (Ga. 2019). H.B. 481, in relevant part, prohibits abortions after the detection of a fetal heartbeat. Id. § 4. H.B. 481 also recognizes unborn children as "natural persons" and further defines an "unborn child" as an embryo/fetus "at any stage of development who is carried in the womb." Id. § 3.

On June 28, 2019, Plaintiffs filed a Verified Complaint for Declaratory and Injunctive Relief against all Defendants¹ pursuant to 42 U.S.C. § 1983, wherein they challenge the constitutionality of H.B. 481. Doc. No. [1]. Plaintiffs assert two claims against Defendants: (1) a violation of the Substantive Due Process right to privacy and liberty under the Fourteenth Amendment to the United States Constitution (Count I); and (2) a violation of Due Process under the Fourteenth Amendment to the United States Constitution (Count II). Id.

Before the Court now are the parties' cross motions for summary judgment.² Plaintiffs move for summary judgment on both claims, requesting that the Court declare H.B. 481 unconstitutional and permanently enjoin all Defendants and their successors in office from enforcing it. Doc. No. [124]. The State Defendants also move for summary judgment on both claims, asserting that Plaintiffs have failed to establish standing to bring this suit. Doc. No. [125]. The State Defendants alternatively move for partial summary judgment on Count II of the Complaint and on the ground that the provisions of H.B. 481 not specifically found unconstitutional are severable. Id. Both motions have been fully briefed by the parties.³ Doc. Nos. [127]; [129]; [135]; [137]. After due consideration, and with the benefit of oral argument,⁴ the Court rules as follows.

I. BACKGROUND

Before proceeding to the merits of the parties' summary judgment motions, the Court finds that an overview of the current state of abortion law, based on United States Supreme Court precedent, the undisputed material facts, and the procedural history of this case is warranted.

A. Abortion Law

The hallmark of the Supreme Court's abortion jurisprudence is Roe v. Wade, 410 U.S. 113, 153–54, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), wherein the Court held that the Due Process Clause of the Fourteenth Amendment provides a fundamental constitutional right of access to abortions. Specifically, the Court found that the constitutional right of privacy, "founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action," is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Id. at 153, 93 S.Ct. 705. Yet the Court also made clear that this right is "not absolute" and thus must be considered against important "state interests as to protection of health, medical standards, and prenatal life." Id. at 154–55, 93 S.Ct. 705.

Nearly twenty years later, the Supreme Court upheld the core ruling in Roe by reaffirming "the right of the woman to choose to have an abortion before viability and to obtain it without undue influence from the State." Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). In doing so, however, the Court recognized that state interests in both a woman's health and fetal life are present and "substantial" from the outset of pregnancy. Id. at 846, 873, 112 S.Ct. 2791. Because of this, the Court held that "[o]nly where state regulation imposes an undue burden on a woman's ability to [choose to terminate or continue her pregnancy before viability] does the power of the State reach into the heart of the liberty protected by the Due Process Clause." Id. at 874, 112 S.Ct. 2791 ; see also id. at 878, 112 S.Ct. 2791 ("An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."). Thus, in order "to protect the central right recognized by [ Roe ] while at the same time accommodating the State's profound interest in potential life," it is the "undue burden" analysis—and not the trimester framework previously established in Roe—that must be employed. Id. at 878, 112 S.Ct. 2791.

The Supreme Court in Casey nevertheless left the essential holding of Roe untouched, stating that "[t]he woman's right to terminate her pregnancy before viability is the most central principle of [ Roe ]. It is a rule of law and a component of liberty we cannot renounce." Id. at 871, 112 S.Ct. 2791. While acknowledging that advances in neonatal care and maternal care have moved viability to an earlier point, the Court dismissed such factual divergences as having "no bearing on the validity of Roe's central holding," which is that:

viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions

. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 or 24 weeks, as it sometimes does today, or at some moment even slightly earlier in the pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.

Id. at 860, 112 S.Ct. 2791 ; see also id. at 846, 112 S.Ct. 2791 ("Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure."); see also Gonzales v. Carhart, 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) ("Before viability, a State ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy.’ ") (quoting Casey, 505 U.S. at 879, 112 S.Ct. 2791 ).

This core holding—established in Roe and reaffirmed in Casey and its progeny—is binding upon this Court. See Johnson v. DeSoto Cty. Bd. of Comm'rs, 72 F.3d 1556, 1559 n.2 (11th Cir. 1996) ("The binding precedent rule affords a [district] court no ... discretion where a higher court has already decided the issue before it.").

B. Statement of Material Facts

Turning now to the facts of this case, the Court makes the following findings of fact for the purpose of resolving the cross motions for summary judgment. In doing so, the...