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1 in the UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT of GEORGIA ATLANTA DIVISION CIVIL ACTION FILE No. 1:19-Cv-02973 Case 1:19-cv-02973-SCJ Document 97 Filed 10/01/19 Page 1 of 47 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SISTERSONG WOMEN OF COLOR REPRODUCTIVE JUSTICE COLLECTIVE, on behalf of itself and its members, et al., Plaintiffs, CIVIL ACTION FILE v. No. 1:19-cv-02973-SCJ BRIAN KEMP, Governor of the State of Georgia, in his official capacity, et al., Defendants. ORDER This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction. Doc. No. [24].1 On June 28, 2019, Plaintiffs SisterSong Women of Color Reproductive Justice Collective, on behalf of itself and its members; Feminist Women’s Health Center, Planned Parenthood Southeast, Inc., Atlanta Comprehensive 1 All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court’s docketing software. 1 Case 1:19-cv-02973-SCJ Document 97 Filed 10/01/19 Page 2 of 47 Wellness Clinic, Atlanta Women’s Medical Center, FemHealth USA d/b/a Carafem, Columbus Women’s Health Organization, P.C., Summit Medical Associates, P.C., on behalf of themselves, their physicians and other staff, and their patients; Carrie Cwiak, M.D., M.P.H., Lisa Haddad, M.D., M.S., M.P.H., and Eva Lathrop, M.D., M.P.H., on behalf of themselves and their patients, (collectively, the “Plaintiffs”), filed a Verified Complaint for Declaratory and Injunctive Relief against Defendants Brian Kemp (in his official capacity as Governor of the State of Georgia), Christopher M. Carr (in his official capacity as Attorney General for the State of Georgia), Kathleen Toomey (in her official capacity as Georgia Commissioner for Department of Public Health), Members of the Georgia Composite Medical Board in their official capacities (John S. Antalis, M.D.; Gretchen Collins, M.D.; Debi Dalton, M.D.; E. Daniel DeLoach, M.D.; Charmaine Faucher, PA-C; Michael Fowler, Sr., C.F.S.P.; Alexander S. Gross, M.D.; Thomas Harbin, Jr., M.D.; Rob Law, C.F.A.; Matthew W. Norman, M.D.; David W. Retterbush, M.D.; Andrew Reisman, M.D.; Joe Sam Robinson, M.D.; Barby J. Simmons, D.O.; and Richard L. Weil, M.D.), LaSharn Hughes, M.B.A. (in her official capacity as Executive Director of the Georgia Composite Medical Board), Paul L. Howard, Jr. (in his official capacity as District Attorney for Fulton County), Sherry Boston (in her official capacity as District Attorney 2 Case 1:19-cv-02973-SCJ Document 97 Filed 10/01/19 Page 3 of 47 for the Stone Mountain Judicial Circuit), Julia Slater (in her official capacity as District Attorney for the Chattahoochee Judicial Circuit), Joyette M. Holmes2 (in her official capacity as District Attorney for the Cobb Judicial Circuit), Danny Porter (in his official capacity as District Attorney for the Gwinnett Judicial Circuit), and Meg Heap (in her official capacity as District Attorney for the Eastern Judicial Circuit) (collectively, the “Defendants”). Doc. No. [1]. In their Complaint, Plaintiffs, pursuant to 42 U.S.C. § 1983,3 challenge the constitutionality of Georgia House Bill 481 (hereinafter, “H.B. 481”), which, 2 In the Complaint, Plaintiffs name John Melvin, in his official capacity as Interim District Attorney for the Cobb Judicial Circuit, as a Defendant. Doc. No. [1]. On July 1, 2019, Joyette M. Holmes was sworn in as District Attorney for the Cobb Judicial Circuit. Under Federal Rule of Civil Procedure 25(d), an “officer’s successor is automatically substituted as a party.” Fed. R. Civ. P. 25(d). Accordingly, the Court granted Defendants’ Notice of Automatic Substitution and Unopposed Motion for Appropriate Relief, thereby substituting Joyette Holmes for John Melvin as a party to this action. Doc. No. [83]. 3 42 U.S.C. § 1983 provides, in relevant part, that: [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial 3 Case 1:19-cv-02973-SCJ Document 97 Filed 10/01/19 Page 4 of 47 inter alia, prohibits abortions after the detection of a fetal heartbeat. H.B. 481 § 4, 155th Gen. Assemb., Reg. Sess. (Ga. 2019). 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. Plaintiffs assert two causes of action: (1) violation of the Substantive Due Process right to privacy and liberty under the Fourteenth Amendment to the United States Constitution; and (2) violation of Due Process under the Fourteenth Amendment to the United States Constitution. On July 23, 2019, Plaintiffs filed a Motion for Preliminary Injunction, in which they ask the Court to enjoin Defendants from enforcing H.B. 481, scheduled to take effect on January 1, 2020. Doc. No. [24]. The motion has been fully brief by the parties.4 The Court also held a hearing on the motion on September 23, 2019. This matter is now ripe for review. capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 4 Defendants Sherry Boston and Paul L. Howard, Jr. filed their own responses to the motion apart from the other Defendants (hereinafter, the “State Defendants”). In her response, Defendant Boston contests whether Plaintiffs have standing to bring claims against her and whether they can overcome her right to immunity under the Eleventh Amendment. Doc. No. [71]. Defendant Howard does not oppose Plaintiffs’ motion. Doc. No. [75]. Plaintiffs have filed replies to the responses of both the State 4 Case 1:19-cv-02973-SCJ Document 97 Filed 10/01/19 Page 5 of 47 I. BACKGROUND Before entertaining the merits of Plaintiffs’ motion, the Court finds that an overview of the current state of abortion law, based on United States Supreme Court precedent, Georgia abortion law and H.B. 481, and the facts set forth in Plaintiffs’ Complaint is warranted. A. Abortion Law The origin of the Supreme Court’s abortion jurisprudence begins with Roe v. Wade, 410 U.S. 113, 153–54 (1973), in which the Court first held that the Due Process Clause of the Fourteenth Amendment provides a fundamental constitutional right of access to abortions. In doing so, the Supreme Court in Roe declared 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. While the Constitution does not explicitly mention any such right of privacy, the Supreme Court has recognized, dating as far back to 1891, that an implied right of privacy, or a guarantee of certain areas or zones of privacy, Defendants and Defendant Boston. Doc. Nos. [87]; [88]. 5 Case 1:19-cv-02973-SCJ Document 97 Filed 10/01/19 Page 6 of 47 exists under the Constitution. Id. at 152; see also Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”). Since that time, the Court has found that this right of privacy affords constitutional protections to personal and intimate decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Servs., Int’l, 431 U.S. 678, 684–85 (1977); see also Whalen v. Roe, 429 U.S. 589, 599–600 (1977) (noting that the right of privacy includes “the interest in independence in making certain kinds of important decisions”). The Court has particularly made clear, in a series of cases, that “[t]he decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices.” Carey, 431 U.S. at 685. In Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965), the Supreme Court first held that the Constitution does not permit a State to forbid a married couple from using contraceptives. The Court later guaranteed that same freedom to unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438, 454–55 (1972). In Carey, the Supreme Court 6 Case 1:19-cv-02973-SCJ Document 97 Filed 10/01/19 Page 7 of 47 extended constitutional protection to the sale and distribution of contraceptives. 431 U.S. at 701–02. These precedents have thus reiterated “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt, 405 U.S. at 453; see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”). 1. Roe and the Trimester Framework In Roe, the Supreme Court broadened the scope of the constitutional right of privacy to encompass the abortion decision.
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