Under Kemp's Eye: Analyzing the Constitutionality of the Heartbeat Restriction in Georgia's Life Act and Its Potential Impact on Abortion Law
| Publication year | 2020 |
Under Kemp's Eye: Analyzing the Constitutionality of the Heartbeat Restriction in Georgia's LIFE Act and its Potential Impact on Abortion Law
Brittney A. Sizemore
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The current state of women's right to bodily autonomy in the United States has eerily begun to resemble that of the dystopian society depicted in The Handmaid's Tale.1 While abortion rates have steadily declined over the last decade, the attempts by state legislatures to restrict or completely take away women's right to abortion have exponentially increased.2 In the first six months of 2019 alone, five states passed laws placing restrictions on abortion.3 These restrictions range from limiting the time frame in which a woman may obtain an abortion to when a fetal heartbeat has been detected—normally around
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six weeks—to a complete ban and criminalization of the procedure.4 In addition to the states that have successfully enacted restrictions, another ten states have either introduced or moved to enact restrictions on abortion.5
So how is it that all of these new laws are constitutional? The short answer is that they are not.6 The Supreme Court of the United States has stated that "[m]en and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage."7 However, the country seems to have moved far beyond the ability to agree to disagree and is now demanding with each new restriction that the Court yet again reevaluate its stance on abortion.
On May 7, 2019, Georgia Governor Brian Kemp signed the Living Infants Fairness and Equality (LIFE) Act8 into law.9 The LIFE Act is among the most restrictive abortion laws that have been introduced this year.10 While the United States District Court for the Northern District of Georgia has granted a preliminary injunction that prohibits the LIFE Act from initially taking effect, the fate of Georgia's abortion law still remains in question.11
This Comment analyzes the constitutionality of the heartbeat restriction in the LIFE Act.12 Part II outlines the history of abortion laws in the United States and the current precedent set by the Supreme
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Court. Part III addresses the current abortion law in Georgia, the changes the LIFE Act will make if it is eventually permitted to take effect, and discusses the pending case that challenges the constitutionality of the law. Part IV discusses the constitutionality of the new law and what it would mean for the future of both Georgia and abortion laws across the United States if the law were to be held constitutional.
The Supreme Court of the United States first announced its stance on abortion forty-five years ago in Roe v. Wade,13 but as time would tell, this would not be the last and definitive decision on the matter.14 While it is beginning to feel like the ongoing struggle to balance women's right to choose with states' interest in protecting potential human life has been going on for centuries, abortion regulation has only been a relevant topic on the national stage since the late nineteenth century.15 In order to better understand the evolution of the new restrictions, it is important to first consider the rationale behind the precedent currently in place.
A. Laying Down the Law
In 1973, the Supreme Court reviewed a case challenging the constitutionality of a Texas statute that made it a crime to obtain or to attempt to obtain an abortion other than out of necessity to save a woman's life.16 To begin its analysis, the Court listed three main reasons behind historic abortion restrictions: (1) they were the product of a Victorian social concern to discourage sexual conduct; (2) to protect pregnant women from submitting to a procedure that placed their lives in serious jeopardy; and (3) to protect prenatal life.17 Since the Court reasoned that the first reason was an outdated notion from a different era, and that the second reason was obsolete due to the advances of
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modern medicine making abortion procedures virtually risk-free, the only reason the Court seemed to put merit in was the state's interest in protecting prenatal life.18
1. The Right to Privacy
The Supreme Court has long recognized that the Due Process Clause of the Fourteenth Amendment19 creates an individual right to privacy.20 However, this right to privacy extends only to those rights that can be deemed fundamental to and implicit in the definition of liberty.21 These rights tend to include the guarantee of personal privacy in activities such as marriage, procreation, contraception, family relationships, and child rearing and education.22 It follows that the right to bodily autonomy is also based in the Due Process Clause.23 In recognizing this right of privacy, the Court determined that denying a woman the right to choose for herself whether or not to obtain an abortion would be an invasion of her right to privacy and detrimental to her physical and emotional well-being.24
However, the Court held that the right to abortion is not absolute.25 At a certain point in the pregnancy, the state has a compelling interest in regulating abortion.26 Where an individual's fundamental rights are involved, state legislation meant to regulate these rights may be justified only if there is a compelling state interest and the regulation is narrowly tailored so as only to protect that specific interest.27 Such
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state interests include protecting the health of state citizens, maintaining medical standards, and protecting prenatal life.28
In order to ensure that the interest of the state and the fundamental rights of the individual remained balanced, the Court held that abortion laws should be based on a trimester framework.29 Under this framework, the Court held that during the first trimester of pregnancy, a state does not have a compelling interest, and therefore may not place any regulation on abortion.30 The decision to end a pregnancy remains with the individual and her attendant physician pre-viability.31 During the second trimester, the state has a sufficiently compelling interest in the health of the mother and is permitted to regulate abortion in ways that reasonably relate to maternal health.32 Finally, during the third trimester when the fetus is considered viable, the state's interest in potential human life becomes compelling enough to justify strict regulations or bans on abortion.33 The Court defined viability as the point when a fetus has the capability to survive outside the womb.34
The Court concluded that the Texas statute was unconstitutional because it made no distinction between abortions performed in early stages of pregnancy and those in later stages, it only allowed abortions to be performed in order to save a woman's life, and it did not adequately consider the compelling interest of a woman's right to privacy in making decisions regarding her body.35
2. Defining Who is a Person Under the Constitution
While the Court in Roe refused to make a ruling on exactly when life begins, the Court stated that the privacy protection of the Fourteenth Amendment does not extend to an unborn fetus.36 The Constitution of the United States does not explicitly define the term "person;" however, the term is used in several different provisions.37 None of the provisions
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seem to indicate that they could possibly ever have a prenatal application. Therefore, a state may not legislate in a manner that would protect a fetus's potential rights as though they were recognized under the Fourteenth Amendment.38
B. Modification to the Law Announced in Roe
Nineteen years after the Supreme Court declared that "the Constitution protects a woman's right to terminate her pregnancy in its early stages, [the] definition of liberty" was again at issue.39 In Planned Parenthood of Southeastern Pennsylvania v. Casey,40 physicians and abortion clinics in Pennsylvania brought a suit seeking injunctive relief in an attempt to keep five provisions of a new state abortion law from taking effect.41 The plaintiffs claimed that the provisions violated the standard set out in Roe and were therefore unconstitutional.42 A plurality of the Court began by stating that the opinion reaffirms the stance that was taken in Roe and maintains its essential propositions.43 Specifically, the Court reaffirmed its recognition of (1) a woman's right to choose to have an abortion pre-viability without undue interference from the state; (2) the state's interest in regulating abortions after the point of viability; and (3) the state's compelling interest from the outset
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of the pregnancy in protecting the health of the woman and potential human life.44 The Court again recognized the liberty it first announced in Roe, that a woman has a fundamental right to be free from intrusion of intimate and personal life decisions, such as having a child.45 However, the Court held that the rigid trimester framework in Roe was unworkable, therefore rejecting it, and instead announced a new framework under which the constitutionality of an abortion law should be analyzed.46
1. The New Undue Burden Test
The Court decided that, instead of a trimester framework, the line should be drawn at viability, which was defined as the "time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman."47 By drawing the line at viability, the Court was better able to balance a woman's liberty and right to bodily autonomy with that of the state's interest in potential human life...
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