ACLU and Planned Parenthood Can File Cert. Petition to Supreme Court on 11th Circuit July 20, 2022 Decision in Sistersong Women of Color, etc. v Governor of Georgia

11th Circuit Upheld GA Fetal Heartbeat Limit on Abortions but it Violates Thirteenth Amendment

Georgia adopted the Living Infants Fairness and Equality Act in 2019. It defined a “natural person” as “any human being including an unborn child.” It defines an “unborn child” as “a member of the species of Homo sapiens at any stage of development who is carried in the womb.” The Act prohibits abortions after a fetal heartbeat is detected, with certain limited exceptions. It does allow removal of an ectopic pregnancy and says that is not an abortion.

Plaintiff organizations sued the Governor of Georgia and other Georgia officials claiming the Act was unduly vague and that the prohibition on post-fetal-heartbeat abortions violated women’s substantive due process rights under the Fourteenth Amendment. The district court entered a preliminary injunction against enforcement, but on appeal by the State to the 11th Circuit, sitting in Atlanta, it reversed on July 20, 2022 the decision of the district court based on the recent Supreme Court decision in Dobbs v. Jackson Women’s Center which held there was no constitutional right to an abortion.

The plaintiffs-appellees in Sistersong have until 90 days after the decision of the 11th Circuit to file a Petition for a Writ of Certiorari with the Supreme Court. I have suggested they do so and raise the issue not raised by any party or Justice in Hobbs or frankly by any party or the courts in the Sistersong case. That argument as developed and discussed in several of my Newsletters says the statute in (Mississippi in Hobbs) and the Georgia fetal heartbeat limit violate the Thirteenth Amendment to the Constitution. The argument is as follows: the fetal heartbeat prohibition imposes a substantial burden on women as a fetal heartbeat can sometimes be detected very early in a pregnancy and if detected, Georgia prohibits the pregnant woman from obtaining an abortion even though for emotional, financial and familial reasons that is precisely what she wants. So, Georgia coerces the woman not to have an abortion after the fetal heartbeat is detected, and particularly if the woman does not have the economic resources to pay for transportation, lodging, meals and the cost of an abortion, she cannot realistically travel to another State that would permit an abortion, and further if there are many women seeking abortions out-of-state even if they can afford them, the limited resources in those other states will be oversubscribed and unable to provide all the out-of-state abortions sought by pregnant women. As such, the Georgia fetal heartbeat limit coerces the woman to go to term with the pregnancy and further coerces her to endure labor and delivery as she had no option to obtain an abortion, and as such it imposes very substantial burdens on the woman to endure the emotional and physical impacts of labor and delivery against her will, and that coercion by Georgia amounts to involuntary servitude in violation of the Thirteenth Amendment to the Constitution: Abraham Lincoln’s Amendment.

The Supreme Court in its most recent discussion of the Thirteenth Amendment held that if there is state coercion imposing substantial burdens, a condition of involuntary servitude may be created violating the Thirteenth Amendment. United States v. Kozminski, 487 U.S. 931 (1988). Justice O’Connor wrote the opinion for the Court, and opinions concurring in the judgment were issued by Justices Brennan, Marshall, Stevens and Blackmun. Justice Rehnquist joined Justice O’Connor’s Opinion. That is an impressive group of Justices all giving life and effect to the Thirteenth Amendment. This argument does not rely on penumbras or the Fourteenth Amendment, and even Justices Alito, Thomas, Gorsuch and Kavanaugh could find the Thirteenth Amendment right there between the Twelfth and Fourteenth Amendments.

Though none of the parties or the judges discussed the effect of the Thirteenth Amendment, nor did any party or Justice in Hobbs discuss the Thirteenth Amendment as it affects restrictions on abortion, since the underlying issue is of major national significance, the Supreme Court should entertain this Thirteenth Amendment argument not considered by any party or court before.

Now let’s get down to votes. Chief Justice Roberts was attempting to have the Court adopt a middle ground decision in Hobbs which reaffirmed Roe and Casey but modified them to allow a 15-week limit on abortions. He tried to persuade Justice Kavanaugh to join his opinion. Then according to my speculation in a prior Newsletter, Justice Thomas, wanting desperately to overturn Roe and Casey, contrary to his 1989 confirmation hearing testimony, wanted to keep Kavanaugh as part of the Alito Five, so he gave the draft Alito opinion to his wife Ginni who then gave it to Politico which published the Alito draft opinion. Thomas’ gambit worked, and Kavanaugh remained with the Alito Five.

But Kavanaugh and all the other Justices can look at the abortion issue anew applying the Thirteenth Amendment which has been in the Constitution since 1865. And Kavanaugh can certainly justify a departure from the Alito Five to support Chief Justice Roberts in reclaiming command of the Court and reversing the recent Hobbs abortion decision which many feel was an abomination. On the Certiorari petition there would be the necessary four votes to grant it coming from: Roberts, Kagan, Sotomayor and Jackson. If Kavanaugh joins the Roberts Four that would give a Five to Four Majority to overturning Hobbs and reinstating Roe and Casey, but subject to such modifications as are agreeable to at least five Justices.

So, I hope the attorneys from the ACLU and Planned Parenthood, counsel to the Sistersong plaintiffs, follow these suggestions and timely file their cert. petition and then urge the Justices to consider the impact of the Thirteenth Amendment. If this happens, the Hobbs opinion by Justice Alito will be the most rapidly overruled major opinion in the history of the Supreme Court.