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, 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., 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 Cirсuit, in her official capacity, FANI T. WILLIS, District Attorney for Fulton County, in her official capacity, Defendants-Appellants, SHERRY BOSTON, District Attorney for DeKalb County, in her official capacity, Defendants.
No. 20-13024
United States Court of Appeals For the Eleventh Circuit
July 20, 2022
[PUBLISH]
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 include 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 officials from enforcing it. But intervening Supreme Court precedent, Dobbs v. Jackson Women‘s Health Org., 142 S. Ct. 2228 (2022),
I. BACKGROUND
Georgia enacted the Living Infants Fairness and Equality (LIFE) Act in 2019.
In June 2019, a group of abortion-rights advocates, 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-fetal
The abortionists moved for, and the district court granted, a preliminary injunction. The district court explained that the abortionists 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 еntered 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 Fourteenth 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
The state officials responded that the definition was not unconstitutionally vague. The state officials contended that to succeed on а 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 example 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 hеartbeat, shall be included in population based determinations.”
The district court granted the abortionists’ motiоn for summary 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,”
The state officials appealed, and all parties agreed at oral argument 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 addressing the effect of that opinion on this appeal. We now lift our earlier stay and consider this аppeal 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
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 arguments 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 Constitution 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 regulate abortion are “entitled to a strong presumption of validity.” Id. at 2284 (internal quotаtion marks omitted). So, we “must” sustain an abortion regulation “if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” Id. The Supreme Court held in Dobbs that “respect for and preservation of” unborn life “at all stages of development” is categorically 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 gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the
The Supreme Court explained that its decisions to the contrary 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 Supreme 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 decisions 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. Williamson, 900 F.3d 1310, 1320–21 (11th Cir. 2018);
Georgia‘s prohibition on abortions after detectable human heartbeat is rational. See
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 unborn child.”
The vagueness doctrine is concerned principally with notice and arbitrary enforcement. “An unconstitutionally vague law invites arbitrary enforcement . . . if it leaves judges and jurors free to
“[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 omitted). We have explained that “[f]acial vagueness occurs when a statute is utterly devoid of a standard of conduct so that it simply has no core and cannot be validly applied to any conduct.” Id. (intеrnal 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 precludes facial invalidity.” Id. (internal quotation marks omitted).
Because an abortion-specific argument is foreclosed, the abortionists now argue that the redefinition implicates two other kinds of conduct prоtected by the Constitution. First, they contend that the redefinition burdens physicians’ right to pursue their chosen 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 abortionists’ facial claim. The Suprеme Court explained that abortion litigation “distort[ed] . . . many important but unrelated legal doctrines.” 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 faсial constitutional challenges from Casey and United States v. Salerno, 481 U.S. 739 (1987). See Dobbs, 142 S. Ct. at 2275 n.60. In
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 supreme 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
A сlassic 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, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607 (1958). Later, the legislature enacts a modified definition of vehicle for those laws that reads “vehicle means any automobile and includes bicycles.” Thе statute clarifies that “as used in the vehicles-in-parks code, ‘bicycle’ means any device with two wheels in tandem, 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, аnd the only reason we could treat the Act any differently is if we treated statutes concerning abortion less favorably. Because a constitutional right to abortion does not exist, we decline to engage in abortion exceptionalism.
We VACATE the injunction, REVERSE the judgment in favor of the abortionists, and REMAND with instructions to enter judgment in favor of the state officials.