SisterSong Women of Color Reproductive Justice Collective v. Governor of the State of Georgia ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13024
____________________
SISTERSONG WOMEN OF COLOR REPRODUCTIVE JUSTICE
COLLECTIVE,
FEMINIST WOMEN'S HEALTH CENTER,
PLANNED PARENTHOOD SOUTHEAST, INC.,
ATLANTA COMPREHENSIVE WELLNESS CLINIC,
ATLANTA WOMEN'S MEDICAL CENTER, et al.,
Plaintiffs-Appellees,
versus
GOVERNOR OF THE STATE OF GEORGIA,
in his official capacity,
CHRISTOPHER MICHAEL CARR,
Georgia Attorney General, in his official capacity
KATHLEEN TOOMEY,
Georgia Commissioner for Department of Public Health,
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2 Opinion of the Court 20-13024
in her official capacity,
JOHN S. ANTALIS,
M.D.,
GRETCHEN COLLINS,
M.D.,
DEBI DALTON,
M.D.,
E. DANIEL DELOACH,
M.D.,
CHARMAINE FAUCHER,
PA-C,
SHAWN M. HANLEY,
C.F.S.P.,
ALEXANDER S. GROSS,
M.D.,
THOMASHARDIN, JR.,
M.D.,
JUDY GARDNER,
C.F.A.,
MATTHEW W. NORMAN,
M.D.,
DAVID W. RETTERBUSH,
M.D.,
ANDREW REISMAN,
M.D.,
JOHN JEFFREY MARSHALL,
M.D.,
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20-13024 Opinion of the Court 3
BARBY J. SIMMONS,
D.O.,
RICHARD L. WEIL,
M.D., Members of the Georgia Composite Medical Board,
in their official capacities,
LASHARN HUGHES,
M.B.A., Executive Director of Georgia Composite Medical Board,
in her official capacity,
STACEY JACKSON,
District Attorney for the Chattahoochee Judicial Circuit,
in her official capacity,
FLYNN BROADY, JR.,
Acting District Attorney for the Cobb Judicial Circuit,
in her official capacity,
PATSY AUSTIN-GATSON,
District Attorney for the Gwinnett Judicial Circuit,
in his official capacity,
SHALENA COOK JONES,
District Attorney for the Eastern Judicial Circuit,
in her official capacity,
FANI T. WILLIS,
District Attorney for Fulton County,
in her official capacity,
Defendants-Appellants,
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4 Opinion of the Court 20-13024
SHERRY BOSTON,
District Attorney for DeKalb County,
in her official capacity,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-02973-SCJ
____________________
Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit Judge, and
SCHLESINGER,* District Judge.
WILLIAM PRYOR, Chief Judge:
This appeal concerns whether Georgia can prohibit some
abortions and whether its redefinition of “natural person” to in-
clude unborn children is unconstitutionally vague on its face. The
district court entered a summary judgment for the abortionists
challenging the Georgia law and permanently enjoined state offi-
cials from enforcing it. But intervening Supreme Court precedent,
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022),
* The Honorable Harvey Schlesinger, United States District Judge for the Mid-
dle District of Florida, sitting by designation.
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20-13024 Opinion of the Court 5
makes clear that no right to abortion exists under the Constitution,
so Georgia may prohibit them. And the expanded definition of nat-
ural person is not vague on its face. We vacate the injunction, re-
verse the judgment in favor of the abortionists, and remand with
instructions to enter judgment in favor of the state officials.
I. BACKGROUND
Georgia enacted the Living Infants Fairness and Equality
(LIFE) Act in 2019. 2019 Ga. Laws Act 234 (H.B. 481). Section 3 of
the Act amends the definition of “[n]atural person” in the Georgia
Code to mean “any human being including an unborn child.” Id.§ 3(b) (internal quotation marks omitted). And it defines “[u]nborn
child” as “a member of the species of Homo sapiens at any stage of
development who is carried in the womb.” Id. § 3(e)(2) (interna
quotation marks omitted). Section 4 prohibits abortions after a fetal
heartbeat is detected with enumerated exceptions. Id. § 4(b). The
Act also clarifies that removal of an “ectopic pregnancy” or “a dead
unborn child caused by spontaneous abortion” is not an “abor-
tion.” Id. § 4(a)(1) (internal quotation marks omitted). Sections 5
through 12 amend other provisions of the Georgia Code involving
child support, tort recovery for fetal homicide, informed consent
for women seeking abortions, tax benefits, and related issues. Id.
§§ 5–12.
In June 2019, a group of abortion-rights advocacy groups,
providers, and practitioners filed a two-count complaint naming as
defendants multiple state officials in their official capacities. The
abortionists’ first count alleged that the Act’s prohibition on post-
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6 Opinion of the Court 20-13024
fetal-heartbeat abortions violated women’s substantive due pro-
cess rights under the Fourteenth Amendment. See H.B. 481 § 4.
The abortionists’ second count alleged that the definition of
“[n]atural person” in section 3 of the Act, see id. § 3 (internal quo-
tation marks omitted), is unconstitutionally vague on its face. The
abortionists’ complaint requested preliminary and permanent in-
junctions restraining the enforcement of the Act, a declaratory
judgment that the Act violates the Fourteenth Amendment, and
attorney’s fees. See 42 U.S.C. §§ 1983, 1988; 28 U.S.C. §§ 2201–02.
The abortionists moved for, and the district court granted, a
preliminary injunction. The district court explained that the abor-
tionists met the burden for a preliminary injunction because the
abortionists were likely to succeed on the merits and would suffer
irreparable harm, the balance of hardships weighed in their favor,
and the public interest was served by a preliminary injunction. The
district court entered a preliminary injunction prohibiting the state
officials from enforcing any provision of the Act.
After discovery, the parties moved for summary judgment.
The abortionists argued that the prohibition of pre-viability but
post-fetal heartbeat abortions was unconstitutional under the Four-
teenth Amendment as interpreted in Roe v. Wade, 410 U.S. 113,
153 (1973), and Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833, 845–46 (1992). The state officials countered
that the abortionists lacked standing to challenge the prohibition.
The abortionists also argued that the definition of natural
person in the Act was unconstitutionally vague. They argued that
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20-13024 Opinion of the Court 7
redefining natural person to encompass the unborn throughout the
Georgia Code gave rise to “uncertainty about what actions give rise
to criminal and civil liability under numerous” Georgia laws. And
the abortionists argued that the Act did not give them “fair notice”
and lacked “explicit standards” to apply. (Internal quotation marks
omitted.)
The state officials responded that the definition was not un-
constitutionally vague. The state officials contended that to suc-
ceed on a facial vagueness challenge, the abortionists must show
that there was no “possibility of a valid application” of the statute.
(Quoting Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 1294,
1302 (11th Cir. 2013).) And the state officials argued that an exam-
ple of a valid application exists in the Act where it provides that
“[u]nless otherwise provided by law, any natural person, . . . with
a detectable human heartbeat, shall be included in population
based determinations.” H.B. 481 § 3(d) (internal quotation marks
omitted). The state officials argued that the definition “functions
clearly” there “by providing that unborn children with detectable
heartbeats shall be included in the State’s population-based deter-
minations.”
The district court granted the abortionists’ motion for sum-
mary judgment, entered a permanent injunction prohibiting the
state officials from enforcing the Act, and declared that sections 3
and 4 of the Act violated the Fourteenth Amendment. The district
court explained that, under the Roe and Casey regime, “a state”
could not “prohibit or ban abortions at any point prior to viability,”
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8 Opinion of the Court 20-13024
so the Act violated the Fourteenth Amendment because it prohib-
ited pre-viability abortions. The district court also explained that
section 3 was unconstitutionally vague because the abortionists
“are forced to hypothesize about ways in which their conduct
might violate statutes amended by the [Act]” and gave some exam-
ples that it thought were applications of the definition that gave too
much discretion to prosecutors. And the district court explained
that all the permanent-injunction factors supported entering a per-
manent injunction, and that the other sections of the Act were in-
severable from the abortion prohibition and the definition of natu-
ral person.
The state officials appealed, and all parties agreed at oral ar-
gument that we should stay this appeal pending a decision in
Dobbs. After the Supreme Court issued its opinion in Dobbs, we
requested and received supplemental briefs from the parties ad-
dressing the effect of that opinion on this appeal. We now lift our
earlier stay and consider this appeal in the light of Dobbs.
II. STANDARD OF REVIEW
“We review a summary judgment de novo.” Leake v.
Drinkard, 14 F.4th 1242, 1247 (11th Cir. 2021) (internal quotation
marks omitted).
III. DISCUSSION
We divide our discussion in two parts. First, we explain that
the prohibition of abortion after fetal heartbeat in the Act is subject
only to rational basis review, and we explain that abortion
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20-13024 Opinion of the Court 9
prohibitions survive rational basis review. Second, we explain that
the definition of natural person is not facially void for vagueness.
A. Abortion Prohibitions Are Constitutional.
In their supplemental brief, the abortionists concede that
Dobbs dooms their challenge to the Act’s prohibition of abortions
after detectable fetal heartbeat. They also concede that their argu-
ments that other provisions of the Act are inseverable from the
abortion prohibition are now irrelevant. We agree.
As the Supreme Court explained in Dobbs, “[t]he Constitu-
tion makes no reference to abortion, and no such right is implicitly
protected by any constitutional provision.” Dobbs, 142 S. Ct. at
2242. As a result, there is no such thing as a constitutional right to
abortion, and “rational-basis review is the appropriate standard”
for challenges to abortion prohibitions. Id. at 2283. Laws that reg-
ulate abortion are “entitled to a strong presumption of validity.” Id.
at 2284 (internal quotation marks omitted). So, we “must” sustain
an abortion regulation “if there is a rational basis on which the leg-
islature could have thought that it would serve legitimate state in-
terests.” Id. The Supreme Court held in Dobbs that “respect for and
preservation of” unborn life “at all stages of development” is cate-
gorically a legitimate state interest. Id. Other legitimate interests
often implicated by abortion regulations include “the protection of
maternal health and safety; the elimination of particularly grue-
some or barbaric medical procedures; the preservation of the integ-
rity of the medical profession; the mitigation of fetal pain; and the
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10 Opinion of the Court 20-13024
prevention of discrimination on the basis of race, sex, or disability.”
Id.
The Supreme Court explained that its decisions to the con-
trary in Roe and Casey were “egregiously wrong from the start.”
See id. at 2243. The Supreme Court declared that Roe was nothing
but an exercise of “raw judicial power,” id. at 2265 (quoting Roe,
410 U.S. at 222 (White, J., dissenting)), that “resemble[d] the work
of a legislature,” id. at 2266. And it held “that Roe and Casey must
be overruled.” Id. at 2242.
As a result, we acknowledge that Dobbs abrogates many
previous decisions of this Court. An intervening decision of the Su-
preme Court overrules our precedents whenever the decision is
“clearly on point.” See Garrett v. Univ. of Ala. Birmingham Bd. of
Trs., 344 F.3d 1288, 1292 (11th Cir. 2003); see also BRYAN A.
GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT § 60, at 492 (2016)
(“Generally speaking, a panel decision may be overruled
. . . by . . . a contrary opinion of the Supreme Court . . . .”). Dobbs
clearly holds that a supposed right to abortion is not protected by
any constitutional provision and the only constitutional scrutiny to
which abortion regulations are subject is rational-basis review.
Dobbs, 142 S. Ct. at 2242, 2283–84. To the extent that previous de-
cisions of this Court apply any heightened review or state that any
provision of the Constitution protects a right to abortion, Dobbs
abrogated those decisions. See, e.g., Robinson v. Att’y Gen., 957
F.3d 1171, 1179–80 (11th Cir. 2020); W. Ala. Women’s Ctr. v. Wil-
liamson, 900 F.3d 1310, 1320–21 (11th Cir. 2018); Planned
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20-13024 Opinion of the Court 11
Parenthood Ass’n of Atlanta Area v. Miller, 934 F.2d 1462, 1471–82
(11th Cir. 1991); Scheinberg v. Smith, 659 F.2d 476, 482–87 (5th
Unit B. Oct. 1981); Poe v. Gerstein, 517 F.2d 787, 794 (5th Cir.
1975).
Georgia’s prohibition on abortions after detectable human
heartbeat is rational. See H.B. 481 § 4(b). “[R]espect for and preser-
vation of prenatal life at all stages of development” is a legitimate
interest. Dobbs, 142 S. Ct. at 2284. The Georgia Legislature’s find-
ings acknowledge a state interest in “providing full legal recogni-
tion to an unborn child.” H.B. 481 § 2(4). That “legitimate interest[]
provide[s] a rational basis for” and “justif[ies]” the Act. Dobbs, 142
S. Ct. at 2284.
B. The Definition of Natural Person Is Not Void for Vagueness on
Its Face.
The parties continue to dispute whether the Act’s definition
of natural person is unconstitutionally vague on its face. The Act
defines a “‘[n]atural person’” as “any human being including an un-
born child.” H.B. 481 § 3(b) (internal quotation marks omitted).
And the Act clarifies that an “[u]nborn child” is “a member of the
species Homo sapiens at any stage of development who is carried
in the womb.” Id. § 3(e)(2) (internal quotation marks omitted). This
new definition applies throughout the Georgia Code. See id. § 3.
The vagueness doctrine is concerned principally with notice
and arbitrary enforcement. “An unconstitutionally vague law in-
vites arbitrary enforcement . . . if it leaves judges and jurors free to
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decide, without any legally fixed standards, what is prohibited and
what is not in each particular case . . . .” Beckles v. United States,
137 S. Ct. 886, 894 (2017) (internal quotation marks omitted). A law
fails to provide notice when it does not “give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly.” Grayned v. City of Rockford, 408
U.S. 104, 108 (1972). Put another way, “[v]agueness arises when a
statute is so unclear as to what conduct is applicable that persons
of common intelligence must necessarily guess at its meaning and
differ as to its application.” Indigo Room, Inc., 710 F.3d at 1301 (in-
ternal quotation marks omitted) (alteration in original). The in-
quiry into whether a statute is vague looks only to whether the
“language of the [law] itself” is vague. Id. at 1302 (internal quota-
tion marks omitted).
“[F]or a facial” void-for-vagueness challenge to succeed, “the
challenger must establish that no set of circumstances exists under
which the Act would be valid.” Id. (internal quotation marks omit-
ted). We have explained that “[f]acial vagueness occurs when a stat-
ute is utterly devoid of a standard of conduct so that it simply has
no core and cannot be validly applied to any conduct.” Id. (internal
quotation marks omitted) (alteration in original). “[I]f persons of
reasonable intelligence can derive a core meaning from a statute,
then the enactment may validly be applied to conduct within that
meaning and the possibility of a valid application necessarily pre-
cludes facial invalidity.” Id. (internal quotation marks omitted).
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The abortionists earlier attempted to avoid this demanding
standard by arguing that the definition “renders the Georgia Code
vague in a manner that chills constitutionally protected conduct,
namely the provision of abortion.” They argued that “[t]he Su-
preme Court has made clear that in the abortion context . . . facial
relief is appropriate when a vague law would impose criminal pen-
alties.” (Citing City of Akron v. Akron Ctr. for Reprod. Health, Inc.,
462 U.S. 416, 451 (1983).) But Dobbs forecloses that argument be-
cause it makes clear that abortion is not constitutionally protected.
Dobbs, 142 S. Ct. at 2242.
Because an abortion-specific argument is foreclosed, the
abortionists now argue that the redefinition implicates two other
kinds of conduct protected by the Constitution. First, they contend
that the redefinition burdens a physicians’ right to pursue their cho-
sen profession of “providing care for pregnant [women].” Second,
they argue that the definition burdens the “right to procreate.”
These arguments fail.
Dobbs requires us to apply the normal standard to the abor-
tionists’ facial claim. The Supreme Court explained that abortion
litigation “distort[ed] . . . many important but unrelated legal doc-
trines.” Dobbs, 142 S. Ct. at 2275. One of the distorted doctrines
named by the Supreme Court was “the strict standard for facial
constitutional challenges.” Id. The Supreme Court followed that
statement with a footnote citation that compares the standards for
facial constitutional challenges from Casey and United States v. Sa-
lerno, 481 U.S. 739 (1987). See Dobbs, 142 S. Ct. at 2275 n.60. In
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14 Opinion of the Court 20-13024
Casey, the Supreme Court explained that a provision was facially
unconstitutional because “in a large fraction of the cases in which
[the provision] [was] relevant, it [would] operate as a substantial
obstacle” to the exercise of a (former) constitutional right. Casey,
505 U.S. at 895. In Salerno, the Supreme Court explained in a non-
abortion context that a “facial challenge to a legislative [a]ct is
. . . the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under
which the [a]ct would be valid.” Salerno, 481 U.S. at 745.
Because we take the Supreme Court at its word, we must
treat parties in cases concerning abortion the same as parties in any
other context. See Dobbs, 142 S. Ct. at 2275–76. And to the extent
that this Court has distorted legal standards because of abortion,
we can no longer engage in those abortion distortions in the light
of a Supreme Court decision instructing us to cease doing so. See,
e.g., Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684–
87 (11th Cir. 2001) (pseudonymity); Campbell v. United States, 962
F.2d 1579, 1584 (11th Cir. 1992) (suggesting in dicta that a state su-
preme court may not declare abortion against the public policy of
a state).
Under the proper standard, the Act’s definition of natural
person is not unconstitutionally vague on its face. When focusing
on the text, as we must, it is hard to see any vagueness. See Indigo
Room, Inc., 710 F.3d at 1302. The Act defines a natural person to
include unborn humans in the womb at any stage of development.
See H.B. 481 § 3(b), (e). A person of reasonable intelligence is
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20-13024 Opinion of the Court 15
capable of understanding that the “core meaning [of]” the provi-
sion is to expand the definition of person to include unborn humans
who are carried in the womb of their mother at any stage of devel-
opment. See Indigo Room, Inc., 710 F.3d at 1302. To be sure, there
might be vague applications of that definition in other provisions
of the Georgia Code, but challenges to those applications—like the
arguments raised in the abortionists’ supplemental brief about po-
tential applications to constitutionally protected conduct—are
properly brought in an as-applied manner. On its face, the statute
is not void for vagueness.
A classic example illustrates the lack of facial vagueness in
the Act. Assume a legislature promulgates multiple laws regulating
what one can do with vehicles in parks. See H. L. A. Hart, Positiv-
ism and the Separation of Law and Morals, 71 HARV. L. REV. 593,
607 (1958). Later, the legislature enacts a modified definition of ve-
hicle for those laws that reads “vehicle means any automobile and
includes bicycles.” The statute clarifies that “as used in the vehicles-
in-parks code, ‘bicycle’ means any device with two wheels in tan-
dem, handlebars for steering, a saddle seat or seats, and pedals
which are used by a human to propel the device.” See Bicycle,
WEBSTER’S NEW INT’L DICTIONARY (2d ed. 1959). In no context
would we declare such a law void for vagueness on its face, and the
only reason we could treat the Act any differently is if we treated
statutes concerning abortion less favorably. Because a constitu-
tional right to abortion does not exist, we decline to engage in abor-
tion exceptionalism.
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16 Opinion of the Court 20-13024
IV. CONCLUSION
We VACATE the injunction, REVERSE the judgment in fa-
vor of the abortionists, and REMAND with instructions to enter
judgment in favor of the state officials.