MY BODY, MY VOICE: The courts won’t protect us anymore

Elections — and votes — do matter

Barbara Ann Luttrell

Last spring, I spent days on end sitting in the halls of our state Capitol, watching our elected officials push through a six-week abortion ban, the likes of which we have never seen in Georgia. Then, weeks later, I was at the state Capitol again as Governor Brian Kemp signed that dangerous bill into law. On that day, Planned Parenthood Southeast promised Governor Kemp that we, along with our partners at ACLU of Georgia and the Center for Reproductive Rights, would see him in court. Because a six-week abortion ban, which bans abortion before most people even know they are pregnant, is blatantly unconstitutional per nearly 50 years of Supreme Court precedent.

Fast forward to September — we kept our promise. This time, I sat in a packed federal courtroom, surrounded by other concerned Georgians, to request a preliminary injunction to temporarily block this law from taking effect. The jury box was filled to the brim with journalists, all waiting to hear how events would unfold. There were so many people there that day that the judge, the Honorable Steve C. Jones, kept the courtroom doors open so folks in the hallway could hear the proceedings. This is especially impressive given that electronic devices, including cell phones, are strictly prohibited in the courthouse. Dozens of 21st-century Georgians flooded the building on a Monday morning, deprived of email, Candy Crush, Instagram, and all other digital stimuli. They were, instead, glued to the real-life tragedy unfolding before them.

It was a rather quick and uneventful proceeding. The hearing only took a couple of hours. There weren’t any big surprises. Judge Jones heard oral arguments from both sides before adjourning for the day. As one might expect, the State’s legal team, who was defending this unconstitutional attack on reproductive rights, was made up of seven men and one woman. As one might expect, our legal team (that of Planned Parenthood Southeast) was the exact opposite: five women and one man. As one might expect, our attorneys argued that, per legal precedent, “there is no state interest strong enough to warrant a ban on abortion.” And as one might expect, the State’s attorneys had to do some legal and linguistic acrobatics to make their case. At one point, an attorney for the State said, “We don’t think [[[[[[[[[[[[[[[the ban] is per se unconstitutional.” I didn’t go to law school, so I’m not sure if this is part of the standard curriculum or if this attorney had to get extra creative with this case, but it felt like the legal equivalent of a child telling their mother that they didn’t break the window because it was technically the baseball that they threw through the window that broke it. Frail technicalities aside, the defendants know the ban is unconstitutional just as the child knows they broke the window.

In fact, the state of Georgia and this bill’s authors were very intentional about this ban being unconstitutional. That’s the goal — to challenge the constitutional right to abortion and to gut Roe v. Wade. During the hearing, Judge Jones recounted a recent conversation with his wife about this very case. His wife posed the question, “When does a U.S. district court have the ability to overturn a Supreme Court ruling?” The answer — and everyone in there knew it — is never. And that’s the point. The defendants expect that lower courts will continue to block their abortion ban, and they will continue to appeal until the case makes its way to the Supreme Court, where they hope to undermine Roe and return abortion rights to the states, rendering it illegal in much of the country. 

The problem with that plan is there are more than a dozen other abortion cases ahead of this one, working their way through the court system at this very moment. Georgia is just one of eleven states that passed similar abortion bans this year, and there are several other cases ahead of those.

In fact, one is already there. Just this month, the U.S. Supreme Court announced it will review Louisiana’s Act 620, an abortion restriction nearly identical to a Texas restriction struck down by the Supreme Court in Whole Woman’s Health v. Helleredt just three years ago.

Whole Woman’s Health was one of the most important rulings in the history of reproductive rights, reaffirming the right to abortion and making it clear that medically unnecessary abortion restrictions, such as Texas’s requirement that abortion providers have local hospital admitting privileges, imposed an undue burden on women seeking access to health care, and therefore should not be allowed to stand. Despite that fact, the U.S. Court of Appeals for the 5th Circuit blatantly disregarded Supreme Court precedent and upheld Louisiana’s abortion restriction in September 2018. By granting review in this case, the Supreme Court is agreeing to reconsider its own 2016 decision in Whole Woman’s Health — and if the court allows this Louisiana law to stand, it will be breaking with its own precedent and dismantling constitutional protections to abortion access.

Locally, this would mean that Louisiana would become the seventh state to have only one abortion provider. Nationally, this could leave 25 million women of reproductive age at risk of losing access to abortion. One in three women are currently living in a state where abortion could be outlawed if Roe is overturned. Georgia is one of them.

But isn’t that highly unlikely? Why would the Supreme Court defy their own decision from just three years ago? Because the makeup of the court has changed. Justice Kennedy, who voted to protect abortion access in Whole Woman’s Health, has since been replaced with Justice Kavanaugh, and Kavanaugh’s record is clear — he has actively worked to block abortion access.

For now, we wait for the Supreme Court to hear the Louisiana case. In the meantime, we will continue to fight Georgia’s ban every step of the way. Just a week after the hearing, Judge Jones granted us a preliminary injunction in the Georgia case. But that is only a temporary win, buying us a little time while we continue our efforts to block it from ever taking effect.

Ultimately, the lesson here is that elections matter. Had Donald Trump not been elected, the fate of abortion access would not be in the hands of Brett Kavanaugh — a man who has a professional record of attacking women’s rights and a personal record of attacking women physically. Had Georgia’s most recent election been fair, Brian Kemp would not be in the Governor’s Mansion, and this six-week abortion ban would never have been signed into law. We have a year to make sure that everyone votes and that every vote matters. The future of abortion access hangs in the balance, and the scales are tipped against us. It has become clear that the courts won’t protect us anymore. We must protect ourselves and our best weapon is our vote.

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