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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
SISTERSONG WOMEN OF COLOR
REPRODUCTIVE JUSTICE
COLLECTIVE, on behalf of itself and
its members, et al.,

No. 1:19-cv-02973-SCJ

Plaintiffs,
v.
BRIAN KEMP, Governor of the State
of Georgia, in his official capacity, et
al.,
Defendants.

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’
MOTION FOR A PRELIMINARY INJUNCTION
Defendants Brian Kemp, Christopher M. Carr, Kathleen Toomey, the
Members of the Georgia Composite Medical Board, LaSharn Hughes, Julia
Slater, Daniel Porter, and Meg Heap (all sued in their official capacities)
respectfully submit this response in opposition to Plaintiffs’ motion for a
preliminary injunction.
INTRODUCTION
The Supreme Court has long held that States have a “legitimate and
substantial” interest in promoting, preserving, and protecting the “life of the
unborn.” Gonzales v. Carhart, 550 U.S. 124, 145, 158 (2007). That is, “the

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State, from the inception of the pregnancy, maintains its own regulatory
interest in protecting the life of the fetus that may become a child …” Id. at
158; see also Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833,
870 (1992) (“[T]he State has a legitimate interest in promoting the life or
potential life of the unborn.”). Moreover, it is well-settled that “a fetus is a
living organism within the womb, whether or not it is viable outside the
womb.” Gonzales, 550 U.S. at 126 (emphasis added). Accordingly, a State may
properly recognize that an unborn child is alive even before “viability” and—
consistent with its power to protect unborn life—may prohibit the killing of
that child by restricting certain types of pre-viability abortions. See Casey,
505 U.S. at 873 (lower federal courts may not impose a “rigid prohibition on
all previability regulation aimed at the protection of fetal life.”).
On May 7, 2019, Governor Brian Kemp signed into law House Bill 481,
the Living Infants Fairness and Equality Act (“LIFE Act”), which generally
prohibits elective abortions after the detection of a fetal heartbeat, subject to
several enumerated exceptions. The Act’s primary objective is to advance
Georgia’s interest in protecting the life of the unborn, an objective the Act
pursues through restrictions on abortion, as well as other tax and child
support provisions designed to promote the well-being of unborn children.
Nearly two months after the Act was signed into law, Plaintiffs brought
this suit to enjoin the entire statute, arguing that it violates the substantive
due process and void-for-vagueness doctrines. Plaintiffs then waited several
more weeks before filing this motion for a preliminary injunction.
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Plaintiffs’ motion should be denied. First, Plaintiffs cannot show that
they are likely to succeed on the merits. Because “the key elements” of federal
abortion precedent “are not found in the text of the Constitution,” abortion
doctrine is perpetually in flux, making “the bounds of the inquiry …
essentially indeterminate.” Webster v. Reprod. Health Services, 492 U.S. 490,
518 (1989) (plurality). Indeed, “[o]ver the past couple of decades the Supreme
Court has issued several decisions drawing and redrawing the contours” of its
own precedent. W. Alabama Women’s Ctr. v. Williamson, 900 F.3d 1310, 1317
(11th Cir. 2018). In particular, the Supreme Court has repeatedly recognized
the States’ legitimate and substantial interest in protecting the life of the
unborn, but the Court has offered little guidance on the precise contours of
that interest.
The LIFE Act is designed to advance Georgia’s powerful interest in
protecting the life of the unborn, and the Act is closely tailored to advancing
that interest. Once a heartbeat is detected, 95-98% of unborn children will
survive until birth absent affirmative intervention to terminate their lives.
The Act thus reflects a reasonable policy judgment that after a heartbeat is
detected, abortions should be permitted only in limited circumstances. The
Act also advances other significant state interests in protecting maternal
health (since abortifacients and early abortions are much safer than laterterm abortions), encouraging mothers to choose childbirth over abortion, and
safeguarding the integrity of the medical profession from the coarsening
effect of brutal and inhumane abortion procedures.
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Plaintiffs also fail to show a likelihood that they will prevail on their
alternative claim that the Act is void for vagueness. That claim focuses not on
the abortion-related provisions of the Act but on how its definition of “natural
person” will purportedly affect other statutes not at issue here. Plaintiffs lack
standing to litigate those arguments and, in all events, their void-forvagueness challenge disregards basic features about the operation of those
laws and does not come close to meeting the criteria for facially invalidating a
state law.
Second, a preliminary injunction is premature. Because the issues
raised in Plaintiffs’ preliminary injunction motion will substantially overlap
with the merits, this Court can and should resolve the entire case through a
single merits hearing. See Fed. R. Civ. P. 65(a)(2). Consolidating the
injunction with a trial on the merits will promote efficiency and judicial
economy. The issues in this case are primarily legal, and the limited factual
or expert issues can be resolved on an expedited time frame in advance of a
merits hearing in October or November. This means there is still time to
reach a final judgment in advance of the Act’s effective date of January 1,
2020. In short, a preliminary injunction is unnecessary at this point.
Finally, at the very least, Plaintiffs’ requested injunction is grossly
overbroad. Even though their challenge focuses solely on the Act’s abortionrelated provisions, they seek a preliminary injunction that would enjoin the
entire Act, including important provisions regarding child support, income
tax deductions, and remedies for crime victims. There is no basis for
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enjoining anything beyond the Act’s limitations on abortion, especially in
light of its severability clause.
BACKGROUND
The LIFE Act prohibits “using, prescribing, or administering any
instrument, substance, device, or other means with the purpose to terminate
a pregnancy with knowledge that termination will, with reasonable
likelihood, cause the death of an unborn child” who possesses a “detectable
human heartbeat.” H.B. 481 §4(a)(1), (b). The Act defines an “unborn child”
as “a member of the species Homo sapiens at any stage of development who is
carried in the womb.” Id. at §3(e)(2). It further defines a “detectable human
heartbeat” as “embryonic or fetal cardiac activity or the steady and repetitive
rhythmic contraction of the heart within the gestational sac.” Id. at §3(e)(1).
In addition to its abortion provisions, the Act seeks to promote the well-being
of unborn children by allowing parents to claim their unborn children as
dependent minors for income tax purposes, and by ensuring that alimony and
child support obligations extend to such children. Id. at §5, §12.
The LIFE Act has been inaccurately labeled as a “six-week abortion
ban,” including by Plaintiffs. See Pls.’ Mem. Supp. Mot. Prelim. Inj. [“Pls.’
Mem.”]. In fact, the Act permits abortionists to comply with the law by using
a trans-abdominal ultrasound, which has a less-than-50% chance of detecting

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a heartbeat before 9 weeks lmp1, and may not do so until 12 weeks.2 See, e.g.,
ECF No. 24-5, Ga. Gen. Assembly, Standing Comm. on Sci. and Tech., 20192020 Reg. Sess., 69-70 (Mar. 14, 2019) (Sen. Jordan: “[A] Doppler or on-theabdomen ultrasound won’t pick up the fetal cardiac activity until about 12
weeks normally; correct?” Rep. Setzler: “I've been told 8 to 12 weeks, yes.…
We don’t establish a methodology by which that determination is made. We
give physicians broad discretion to make that determination.”).
Moreover, the LIFE Act provides multiple exceptions to its restrictions
on abortion. First, the Act allows a post-heartbeat abortion if the mother has
a “medical emergency,” which is defined as “a condition in which an abortion
is necessary in order to prevent the death of the pregnant woman or the
substantial and irreversible physical impairment of a major bodily function of
the pregnant woman.” H.B. 481 §4(a)(3), (b)(1). The Act also allows postheartbeat abortion if the “probable gestational age of the unborn child is 20
weeks or less and the pregnancy is the result of rape or incest in which an
official police report has been filed alleging the offense of rape or incest.” Id.
at §4(b)(2). And the Act gives abortionists five different defenses to
prosecution. See id. at §4(h).

The unborn child’s gestational age is typically dated in weeks
starting from the first day of the mother’s last menstrual period, or “lmp.”
1

See, e.g., Avick G. Mitra, MD, et al., Transvaginal versus
transabdominal Doppler auscultation of fetal heart activity: A comparative
study, 175 Am. J. Obstet. Gynecol. 41 (1996), available at
https://www.ncbi.nlm.nih.gov/pubmed/8694073.
2

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By “applying reasoned judgment to the full body of modern medical
science,” the LIFE Act recognizes that “[m]odern medical science, not
available decades ago, demonstrates that unborn children are a class of
living, distinct persons.” Id. at §2(3). As such, the Act advances Georgia’s
unique and substantial constitutional interest in protecting unborn human
lives, in addition to its interests in protecting maternal health, encouraging
childbirth, and safeguarding the integrity of the medical profession.
ARGUMENT
This Court may grant a preliminary injunction only if: (1) Plaintiffs
have a substantial likelihood of success on the merits; (2) Plaintiffs will suffer
irreparable injury without injunctive relief; (3) the alleged injury to Plaintiffs
outweighs the damage caused to Defendants by granting an injunction; and
(4) if issued, the injunction will not be adverse to the public interest. Siegel v.
LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). Because an injunction may not
be granted unless Plaintiffs “clearly establish[] the burden of persuasion as to
each of the[se] four prerequisites,” it is “an extraordinary and drastic remedy”
and “the exception rather than the rule.” Id. (cleaned up).
I.

Plaintiffs Do Not Have a Substantial Likelihood of Success.
In analyzing the plaintiff’s likelihood of success on the merits, courts

“do not decide the merits of the case or resolve unsettled legal questions.”
Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n.14 (1981). If the relevant legal
claims “involve unsettled questions of law,” this “uncertainty discounts the
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likelihood of success on the merits.” Morefield v. NoteWorld, LLC, 1:10-cv00117, 2012 WL 1355573, at *4 (S.D. Ga. 2012).
Here, Georgia asserts an interest in protecting unborn life. The
Supreme Court has acknowledged the legitimacy of that interest, but has not
directly addressed that interest’s precise contours or the constitutionality of a
fetal heartbeat law enacted to protect it. Plaintiffs thus cannot show at this
early stage of the litigation that they are likely to succeed on the merits.
Current law simply does not provide the legal certainty that Plaintiffs
suggest is on their side. Contrary to Plaintiffs’ assertions, the right to choose
an abortion (even pre-viability) is not absolute. See, e.g., Roe v. Wade, 410
U.S. 113, 154 (1973) (“The privacy right … cannot be said to be absolute.”).
Moreover, while the Court has struck down abortion regulations that it
deemed pretextual, see, e.g., See Whole Woman’s Health v. Hellerstedt, 136 S.
Ct. 2292 (2016), it has upheld restrictions on abortion where they are
properly tailored to advancing the State’s asserted interest, see Gonzales, 550
U.S. at 156-66. Even under intermediate scrutiny—the highest level of
scrutiny that could apply to this case—Defendants should prevail because the
State’s asserted interest in enacting the LIFE Act is substantial, its chosen
means are rational, and those rational means are closely tailored to that
substantial interest. Finally, Plaintiffs lack standing to bring their void-forvagueness claim, and that claim is in any event unlikely to succeed on the
merits.

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A.

The LIFE Act is a valid law to protect unborn human life.
1.

The Act is not a “ban” on abortion or “per se” invalid.

Plaintiffs allege that the LIFE Act violates substantive due process by
“infring[ing] on women’s right to abortion and bodily autonomy.” Pls.’ Compl.
at 34. In particular, they argue that the LIFE Act is “per se” unconstitutional
because it “bans” pre-viability abortions. Pls.’ Mem. at 10-14, 18. Those
arguments do not establish a substantial likelihood of success on the merits.
First, as a factual matter, the LIFE Act does not “ban” pre-viability
abortions. It allows a woman to have an elective abortion up to the point that
a heartbeat is detected, which (depending on the type of ultrasound used)
may not occur until 9 to 12 weeks lmp. See supra 5-6. The LIFE Act also
contains exceptions allowing post-heartbeat abortions where there is a
medical emergency, rape, or incest. The Act is not a “ban” on pre-viability
abortion.
Second, the Supreme Court has upheld a “ban” (to use Plaintiffs’ term)
on pre-viability dilation and extraction (“D&X”) abortions. See Gonzales, 550
U.S. at 156-66. Plaintiffs maintain that “a ban on abortion at any point before
viability is per se unconstitutional, no matter what interests the state asserts
to support it.” Pls.’ Mem. at 11. Plaintiffs cite no authority for that
proposition, and they ignore Gonzales, which refutes it. No Supreme Court
case has ever held that a pre-viability abortion restriction is per se unlawful.
On the contrary, the Court rejects such “rigid prohibition[s] on all previability
regulation aimed at the protection of fetal life.” Casey, 505 U.S. at 873; see
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also Roe, 410 U.S. at 154 (the right to choose an abortion “cannot be said to
be absolute.”).
Third, and tellingly, Plaintiffs do not argue that the LIFE Act runs
afoul of the Supreme Court’s “undue burden” test. See Pls.’ Mem. at 11 n.12.
Plaintiffs thus seem to acknowledge that this test does not apply here.
Indeed, the Supreme Court has applied the “undue burden” test only in cases
dealing with maternal health and “potential life” regulations—laws that
encourage women to freely choose childbirth over abortion. See Whole
Woman’s Health, 136 S. Ct. 2292 (maternal health); Casey, 505 U.S. 833
(potential life); see also Gonzales, 550 U.S. 124 (potential life and other
interests). But the LIFE Act is different. Unlike most abortion laws reviewed
by the Supreme Court—such as laws on informed consent, parental
notification, or hospital admitting privileges—the LIFE Act takes the novel
step of advancing a separate and distinct constitutional interest in protecting
unborn human life.
In short, as explained below, the LIFE Act seeks to advance a critical
government interest in protecting unborn human life in a context that has
not been squarely addressed by the Supreme Court. Given that the law in
this area remains unsettled, Plaintiffs cannot demonstrate a substantial
likelihood of success on the merits. See, e.g., Carson, 450 U.S. at 88 n.14 (no
likelihood of success where “unsettled legal questions” remain).

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2.

The LIFE Act pursues a legitimate and substantial
state interest in protecting unborn human life.

The Supreme Court has long recognized the States’ “legitimate and
substantial interest” in protecting unborn human life and has invoked that
interest to uphold pre-viability restrictions on abortion. Gonzales, 550 U.S. at
145, 158 (“[T]he State, from the inception of the pregnancy, maintains its own
regulatory interest in protecting the life of the fetus …”); see also Casey, 505
U.S. at 870-71 (“[T]he State has a legitimate interest in promoting the life or
potential life of the unborn.”); Thornburgh v. Am. College of Obstetricians and
Gynecologists, 476 U.S. 747, 770 (1986).
The Supreme Court first recognized the States’ substantial interest in
protecting unborn life in Planned Parenthood Ass’n of Kansas City, Mo., Inc.
v. Ashcroft, 462 U.S. 476, 482-86 (1983). There the Court considered the
constitutionality of a state law that required a second physician to be present
during the abortion of a viable unborn child. If the child survived the
abortion, the law required the second physician to “take all reasonable steps
in keeping with good medical practice to preserve the life and health of the
viable unborn child; provided that it does not pose an increased risk to the
life or health of the woman.” Id. at 483 (plurality) (cleaned up). The Court
upheld the law, and the plurality opinion declared that the law was
appropriately tailored to the State’s “compelling interest” in protecting “the
life of a viable fetus.” Id. at 482.
Later, in a case dealing with a similar law, a majority of the Supreme
Court adopted the approach of the Ashcroft plurality, recognizing that States
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may properly legislate to save unborn human lives. See Thornburgh, 476 U.S.
at 768-70. The Court later reaffirmed the States’ interest in protecting
unborn life in Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. at
870, holding that “the State has a legitimate interest in promoting the life or
potential life of the unborn.” Id. (emphasis added). However, unlike Ashcroft
and Thornburgh, Casey did not involve abortion laws that were designed to
protect unborn human life—instead, it concerned laws requiring informed
consent, parental notification, spousal notification, and reporting. Id. at 844.
Therefore, the Court did not consider whether those laws were properly
tailored to the state’s interest in protecting unborn human life, but instead,
whether they were tailored to the State’s interest in “potential life.” 505 U.S.
at 877-79.
The State’s interest in “potential life” is another way of describing its
interest in encouraging mothers to voluntarily choose childbirth instead of
abortion. See, e.g., Beal v. Doe, 432 U.S. 438, 445-46 (1977). Casey held that,
if a state law is designed to encourage a woman to freely choose life of her
own accord, “the means chosen by the State to further the interest in
potential life must be calculated to inform the woman’s free choice, not hinder
it.” 505 U.S. at 877. Accordingly, “potential life” regulations may not impose
an “undue burden” on the right to choose abortion pre-viability. Id. If such a
regulation purports to “inform the woman’s free choice”—but effectively
“hinder[s] it”—that regulation is pretextual, and as such, is unconstitutional.
Id. This entire inquiry is separate and distinct from the inquiry (conducted
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briefly in Ashcroft and Thornburgh) concerning the State’s unique interest in
protecting unborn lives.
In Gonzales v. Carhart, the Court again recognized that a State has a
“legitimate and substantial interest in preserving and promoting fetal life.”
550 U.S. at 145; see also id. at 158 (“[T]he State, from the inception of the
pregnancy, maintains its own regulatory interest in protecting the life of the
fetus that may become a child.”). Gonzales concerned a ban on pre- and postviability D&X abortions. Like Casey, the Court in Gonzales did not treat this
law as an effort to actually save unborn lives. Id. at 157. Instead, the Court
characterized the ban as a “potential life” law designed to encourage women
to freely choose childbirth by showing “profound respect for the life within the
woman.” Id.
The Court also held that the D&X ban simultaneously advanced three
other substantial state interests. First, the ban safeguarded “the integrity
and ethics of the medical profession” by prohibiting brutal procedures that
“confuse[] the medical, legal, and ethical duties of physicians to preserve and
promote life” and “coarsen society to the humanity of … all vulnerable and
innocent human life.” Id. Second, the ban protected women from experiencing
psychological trauma from abortion. Id. at 159-60. Third, the ban addressed
“additional ethical and moral concerns” that are implicated by the “disturbing
similarity” of D&X to infanticide. Id. at 158. In light of these combined state
interests, the Court applied a modified “undue burden” standard, giving

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special solicitude to Congress, and finding no undue burden—even though
the ban did not contain a maternal health exception. See id. at 156-66.
Here, the LIFE Act advances multiple interests that the Supreme
Court has accepted as legitimate. It protects unborn life. It safeguards the
medical profession from the coarsening effect of brutal abortion procedures,
such as live-dismemberment and vacuum-suction abortion. It protects
maternal health by ensuring that mothers who choose to abort their child use
abortifacients or early-term procedures, which are far safer for the mother.3
And it encourages women to freely choose childbirth of their own accord by
showing a “profound respect for the life within the woman.” Id. at 157.
3.

The LIFE Act’s restriction on pre-viability abortions is
closely tailored to its interest in protecting unborn life.

Without the undue burden test—which, again, Plaintiffs have not
asked this Court to apply here—the highest level of scrutiny that could apply
to the LIFE Act is intermediate scrutiny. See Casey, 505 U.S. at 871
(prohibiting the use of strict scrutiny in abortion cases). And even under that
level of scrutiny, Plaintiffs cannot establish a likelihood of success, because

See, e.g., Linda A. Bartlett, MD, MHSc, et al., Risk Factors for Legal
Induced Abortion–Related Mortality in the United States, 103 Am. J. Obstet.
Gynecol. 729, 729, 736 (2004) (“The risk of death [for abortion] increase[s]
exponentially by 38% for each additional week of gestation,” and, “[i]f women
who terminated their pregnancies after 8 weeks of gestation had accessed
abortion services during the first 8 weeks of gestation, up to 87% of deaths
might have been avoided.”), available at https://bit.ly/31MctM2.
3

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the LIFE Act is closely tailored to Georgia’s substantial interest in protecting
unborn life.
First, Georgia’s decision to draw a line at the heartbeat is substantially
related to its important interest in protecting life because the heartbeat is an
extremely accurate indicator that an unborn child will survive until birth.
See, e.g., David F. Forte, Life, Heartbeat, Birth: A Medical Basis for Reform,
74 Ohio St. L.J. 121, 140 (2013) (collecting post-Casey medical research).
“[T]he miscarriage rate for all pregnancies may be as high as 30%.” Id.
However, “[r]ecent medical research has determined that … once a fetus
possesses cardiac activity, its chances of surviving to full term are between
95%-98%.” Id. (footnote omitted). In short, once a heartbeat is detected, it is
almost certain that an unborn child will survive to birth absent affirmative
interventions to take away its life. The LIFE Act’s restriction on postheartbeat abortion is, therefore, a closely tailored means of saving unborn
human lives. At the same time, the LIFE Act preserves the mother’s ability
to obtain an elective abortion at earlier stages of the pregnancy, which is
when the vast majority of women choose to do so. In fact, statistical data
show that 66% of mothers who have an abortion do so within 8 weeks lmp,
and 89% within 12 weeks.4 See Casey, 505 U.S. at 869 (restrictions must
leave a mother with “some freedom” to abort her child).

Guttchmacher Institute, Induced Abortion in the United States (Jan.
2018), available at https://www.guttmacher.org/fact-sheet/induced-abortionunited-states (citing recent statistical data).
4

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Second, the heartbeat is a more logical marker of the presence of
human life than other alternatives, such as viability. It is widely recognized
both in science and in law that a living person dies the moment their heart
irreversibly stops beating. See, e.g., Uniform Determination of Death Act
§1(2) (1980) (“An individual who has sustained … irreversible cessation of
circulatory and respiratory functions … is dead.”); O.C.G.A. §31-10-16 (same).
If life ends when the heart stops beating, it is reasonable for Georgia to
conclude as a matter of policy that a life is worthy of protection once the heart
starts beating.
Third, unlike other measures (such as viability), the heartbeat
standard provides clear notice to abortionists of what conduct is prohibited.
While the time for detecting a heartbeat may vary—and may not occur until
8 to 12 weeks—detecting a heartbeat is easy and reliable. See supra 5-6.
Viability, by contrast, is a highly “uncertain[]” marker. Colautti v. Franklin,
439 U.S. 379, 395 (1979). Because “a physician determines whether or not a
fetus is viable after considering a number of variables,” viability “can be
determined only with difficulty.” Id. at 395-96.
Fourth, the Act’s exceptions substantially advance Georgia’s interest in
protecting all human life, born and unborn. The Supreme Court has held that
state laws designed to save unborn life must have an “emergency exception”
to allow the mother to abort her child if continuing the pregnancy would
cause her death. Thornburgh, 476 U.S. at 770-71. The LIFE Act does this and
more. It allows a mother to abort her child, even after the heartbeat is
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detected, if her life or health is threatened. See H.B. 481 §4(a)(3) (allowing
post-heartbeat abortion where “necessary in order to prevent the death of the
pregnant woman or the substantial and irreversible physical impairment of a
major bodily function of the pregnant woman”). The LIFE Act even allows
post-heartbeat abortions of children conceived by rape or incest. See id. at
§4(b)(2). By satisfying the constitutional minimum, these abortion exceptions
demonstrate the LIFE Act’s commitment to protecting all human life, both
mother and child. Cf. Gonzales, 550 U.S. at 161-67 (upholding a “potential
life” restriction on pre-viability abortion that did not contain an exception for
maternal health).5
B.

The LIFE Act is not unconstitutionally vague.

Plaintiffs further argue that Section 3 of the LIFE Act—which amends
Georgia’s definition of “natural person” to include “an unborn child”—makes
other criminal laws (not the LIFE Act) unconstitutionally vague. See Pls.’
Mem. 15-18. Plaintiffs have not shown a substantial likelihood of success on
this claim.

Plaintiffs argue that the LIFE Act is invalid under MKB Mgt. Corp. v.
Stenehjem, 795 F.3d 768 (8th Cir. 2015), but that decision is inapposite
because it did not consider the separate and distinct state interest in
protecting unborn life. See id. at 771-73. North Dakota did not even assert
any interest in saving unborn lives. See Appellants’ Brief, 2014 WL 3421303.
The Eighth Circuit thus applied Casey and determined that the law did not
meet Casey’s “undue burden” standard. See Stenehjem, 795 F.3d at 771-73.
5

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At the outset, Plaintiffs lack Article III standing to bring this claim. “To
demonstrate … standing to bring a vagueness challenge … [the claimant]
must show that: (1) he has suffered, or imminently will suffer, an injury-infact; (2) the injury is fairly traceable to the operation of the [law]; and (3) a
favorable judgment is likely to redress the injury.” Harrell v. The Fla. B., 608
F.3d 1241, 1253 (11th Cir. 2010). To make this showing, Plaintiffs must
demonstrate that they personally intend “to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute,
and [that] there exists a credible threat of prosecution thereunder.” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 159 (2014). In other words, there
must be a “causal nexus” between the purportedly vague law and the alleged
injury of the party who raises the claim. E.g., D.H. v. City of New York, 309 F.
Supp. 3d 52, 68-69 (S.D.N.Y. 2018) (dismissing a vagueness claim where the
“plaintiffs [did] not plead that uncertainty over the conduct prohibited by the
statute resulted in their arrests”); see Porter v. Kimzey, 309 F. Supp. 993, 995
(N.D. Ga. 1970).
Plaintiffs have not made this showing. They speculate about
hypothetical conduct that might violate other laws (not the LIFE Act), see
Pls.’ Mem. 15-18, but Plaintiffs do not identify any specific actions that they
intend to take whose legal consequences are now made unclear or vague by
the LIFE Act. Even if the Act makes other statutes vague or unclear,
Plaintiffs have not identified any concrete, non-speculative “course of
conduct” that they plan to take that would create a “credible threat of
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prosecution” under those statutes. Driehaus, 573 U.S. at 159. Having failed to
show Article III standing for their vagueness claim, Plaintiffs have failed to
demonstrate a likelihood of success on the merits.
In all events, even if Plaintiffs had standing, their vagueness challenge
would fail on the merits. “A statute … need only be written with a reasonable
degree of certainty in order to withstand constitutional scrutiny.” U.S. v.
Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir. 1982). “[A] regulation is not
vague because it may at times be difficult to prove an incriminating fact but
rather because it is unclear as to what fact must be proved.” F.C.C. v. Fox TV
Stations, Inc., 567 U.S. 239, 253 (2012). Additionally, because Plaintiffs bring
a facial challenge, they have an especially heavy burden of proving vagueness
here. See United States v. Salerno, 481 U.S. 739, 745 (1987). All statutes have
some ambiguity at the margin, and “[i]t would indeed be undesirable for
[federal courts] to consider every conceivable situation which might possibly
arise in the application of complex and comprehensive legislation.” Gonzales,
550 U.S. at 168 (quotation marks omitted); see also id. at 167-68 (noting that
“as-applied challenges are the basic building blocks of constitutional
adjudication” and that facial challenges generally “should not … [be]
entertained” in abortion cases). Therefore, “[a] facial challenge … must
establish that no set of circumstances exists under which the Act would be
valid.” Salerno, 481 U.S. at 745.
Under these demanding standards, Plaintiffs do not come close to
showing that the LIFE Act is unconstitutionally vague. The Act’s definition of
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“natural person” is clear and straightforward: “‘Natural person’ means any
human being including an unborn child.” H.B. 481 §3(b). The phrase “unborn
child” is further defined, with painstaking precision, as “a member of the
species Homo sapiens at any stage of development who is carried in the
womb.” Id. at §3(e)(2). It would be difficult for this definition to be more exact
as to “what fact must be proved.” Fox, 567 U.S. at 253.
In arguing that the LIFE Act makes other laws vague, Plaintiffs give as
their prime example the crime of “reckless conduct,” which prohibits
“caus[ing] bodily harm to or endanger[ing] the bodily safety of another person
by consciously disregarding a substantial and unjustifiable risk that his act
or omission will cause harm or endanger the safety of the other person.”
O.C.G.A. §16-5-60(b) (emphasis added). Plaintiffs argue that the LIFE Act
makes it unclear whether this crime now prohibits abortion from the moment
of conception. See Pls.’ Mem. at 16-17.
That argument rests on a highly implausible reading of the relevant
statutes. Even if the LIFE Act’s revised definition of “natural person” now
applies to the crime of reckless conduct, an individual’s behavior would
violate that prohibition only if there were a conscious disregard of an
“unjustifiable” risk of harm. O.C.G.A. §16-5-60(b). Pre-heartbeat abortions
were lawful in Georgia both before and after the enactment of the LIFE Act,
and would therefore be “justifiable.” See also O.C.G.A. §16-3-20 (giving a
“defense to prosecution” for “conduct [that] is justified for any … reason
under the laws of this state”). Moreover, given that Georgia’s asserted
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interest in protecting life begins with the detection of a fetal heartbeat, any
attempts to ban or prosecute pre-heartbeat abortions would likely be found
unconstitutional. In short, no citizen could reasonably believe that preheartbeat abortions could be prosecuted as reckless conduct.
Plaintiffs offer various other examples of crimes that the LIFE Act
purportedly renders vague, but all are unavailing. See Pls.’ Mem. at 16. For
example, Plaintiffs try to argue that “aggravated assault,” O.C.G.A. §16-5-21,
would apply to pre-heartbeat abortions, but Plaintiffs ignore the fact that a
person may be convicted of “aggravated assault” against an unborn child only
if that person first committed “assault of unborn child”—which the Code
expressly defines to exclude abortion. O.C.G.A. §16-5-28(d) (“Nothing in this
Code section shall be construed to permit the prosecution of … abortion …”).
Plaintiffs also argue that criminal prohibitions on the sale of tobacco to
minors or the sexual exploitation of children, see O.C.G.A. §16-12-171; §19-75, have become unconstitutionally vague, but they identify no lawful conduct
that Plaintiffs intend to engage in that could be deemed to violate these
prohibitions. Plaintiffs are unlikely to prevail on their vagueness claim.
II.

A Preliminary Injunction is Unnecessary and Premature.
“A preliminary injunction requires showing ‘imminent’ irreparable

harm. Indeed, the very idea of a preliminary injunction is premised on the
need for speedy and urgent action to protect a plaintiff’s rights before a case
can be resolved on its merits.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d
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1244, 1248 (11th Cir. 2016) (emphasis added) (cleaned up) (citing Univ. of
Tex. v. Camenisch, 451 U.S. 390, 395 (1981)); see Siegel, 234 F.3d at 1176
(“[T]he asserted irreparable injury must be neither remote nor speculative,
but actual and imminent.” (cleaned up)).
The LIFE Act does not go into effect until January 1, 2020, and there is
thus sufficient time for this case to be adjudicated on the merits before any
alleged harm to Plaintiffs could materialize. Because most of the issues in
this case turn on pure questions of law—such as how the State may
legitimately advance its interests and what standard of review applies—
Georgia will use a limited number of fact and/or expert witnesses. With more
than four months before the LIFE Act takes effect, the State believes that
there is ample time to resolve this entire case through a joint hearing on the
merits and the preliminary injunction motion in October or November. See
Fed. R. Civ. P. 65(a)(2) (“Before or after beginning the hearing on a motion for
a preliminary injunction, the court may advance the trial on the merits and
consolidate it with the hearing.”). The State remains willing to work
expeditiously toward a final decision on the merits before the LIFE Act goes
into effect on January 1st.
Moreover, if this Court believes there is not enough time to reach a
decision on the merits before the end of the year, it is largely the product of
Plaintiffs’ own lack of urgency in litigating this case. When seeking the
extraordinary remedy of a preliminary injunction, any “delay in seeking a
preliminary injunction … even [by] only a few months—though not
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necessarily fatal—militates against a finding of irreparable harm.” Wreal,
840 F.3d at 1248. The LIFE Act was first introduced in late February of 2019,
and was widely reported by news outlets as early as March. In fact, Plaintiff
SisterSong Women of Color Reproductive Justice Collective discussed the law
with news reporters in March, and the ACLU announced in March its
intention to sue to challenge the law. This law did not blindside Plaintiffs
when the Governor signed it on May 7.
Plaintiffs nonetheless waited until June 28, nearly two months after
the LIFE Act was passed, to file their complaint with this Court. Plaintiffs
then delayed further by failing to serve Defendants until the end of July. And
they did not file their motion for a preliminary injunction until July 23—over
two and a half months after the Act was signed into law. Plaintiffs’ “failure to
act with speed or urgency in moving for a preliminary injunction necessarily
undermines a finding of irreparable harm” or the need for an immediate
decision from this Court in advance of a decision on the merits. Id.
The better way to proceed is through consolidation with a full merits
hearing pursuant to Rule 65(a)(2). There is ample time before the LIFE Act’s
effective date to conduct limited discovery, proceed to a full hearing in the
fall, and allow the Court to resolve the entirety of this case all at once. For
example, Defendants would propose that written discovery be served by
August 26 (with responses due by September 9); that any expert opinions be
disclosed by October 2; that any depositions (which will be few) be completed
by October 11; and that briefing be completed by the end of October for a
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hearing in early November. Although compressed, this schedule would be
sufficient to develop the necessary record to finally dispose of this matter in
this Court. And “[d]eciding these issues once and for all on a full record will
be most beneficial to all parties.” Allen v. School Bd. for Santa Rosa County,
Fla., 782 F.Supp.2d 1304, 1327 (N.D. Fla. 2011).
III.

Plaintiffs’ Requested Injunction Is Overbroad.
Although Defendants believe that Plaintiffs are not entitled to any

relief at this stage, Plaintiffs’ requested injunction is also grossly overbroad.
Plaintiffs devote their entire preliminary injunction motion to the abortionrelated aspects of the Act, and then assert in a footnote that the entire Act
should be enjoined—notwithstanding its severability clause. See Pls.’ Mem.
14-15 & n.16. But a number of the Act’s provisions have nothing to do with
abortion. For example, Section 5 requires the father of an unborn child to pay
child support for the “direct medical and pregnancy related expenses of the
mother of the unborn child.” Section 6 sets monetary damages for the
homicide of an unborn child. And Section 12 allows a family to claim a
personal exemption for an unborn child. Plaintiffs have not even attempted to
argue that these provisions are unconstitutional. Even if other sections of the
Act were held invalid, these sections would be severable, see H.B. 481 §14,
and should not be enjoined.

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CONCLUSION
Plaintiffs’ motion for preliminary injunction should be denied.
Respectfully submitted,
Dated:

August 19, 2019

/s/ Andrew A. Pinson

Jeffrey M. Harris (pro hac vice)
Steven C. Begakis (pro hac vice pending)
CONSOVOY MCCARTHY PLLC
1600 Wilson Boulevard, Suite 700
Arlington, VA 22209
(703) 243-9423

Christopher M. Carr
Attorney General of Georgia
Andrew A. Pinson (Bar #584719)
Solicitor General
Georgia Department of Law
40 Capitol Square SW
Atlanta, GA 30334
(404) 651-9453

Patrick Strawbridge (pro hac vice)
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South, PMB #706
Boston, MA 02109
(617) 227-0548
Counsel for Defendants

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CERTIFICATE OF COMPLIANCE
I certify that this brief uses 13-point Century Schoolbook in compliance
with Local Rule 5.1(B).
/s/ Andrew A. Pinson
Andrew A. Pinson

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing brief was electronically filed with the
Clerk of Court using the CM/ECF system on August 19, 2019, thereby
serving all counsel of record.
/s/ Andrew A. Pinson
Andrew A. Pinson

27