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Why the Texas law is very different from Georgia's 'heartbeat' abortion law

Georgia's "heartbeat" law is similar in aim, but the way it's constructed isn't the same as what the Supreme Court addressed with Texas' law.

ATLANTA — The Supreme Court ruling this week allowing Texas' restrictive abortion law to stand for now is unlikely to influence the case of Georgia's own "heartbeat" bill, but it could inspire the state legislature to copy the Texas strategy according to one attorney.

Georgia's law, H.B. 481, is like the Texas law in that it aims to ban any abortions after a "fetal heartbeat" can be detected, which is usually around six weeks and often before many women even realize they're pregnant.

But beyond that, they're very, very different.

On constitutional grounds, a federal judge ruled last year that Georgia's law is unambiguously unconstitutional - Judge Steve C. Jones wrote in a decision blocking the law that it "directly conflicts with binding Supreme Court precedent and thus violates (the) right to privacy and liberty secured by the Fourteenth Amendment."

RELATED: No, Texas’ heartbeat bill does not allow abortions in the case of rape or incest, but makes an exception if the mother’s life is in danger

So how is that different from what's going on with the Texas law? The binding Supreme Court precedent referenced in Judge Jones' decision is Roe v. Wade, which established the constitutional right to an abortion. And as a technical matter, the Supreme Court decision in the Texas case does not address Roe v. Wade or the constitutional merits of abortion rights.

It gets quite complicated, but instead what the divided Supreme Court did was leave the Texas law in place for now by saying the case "presents complex and novel... procedural questions." They basically declined to act on the law at this time, neither ruling for or against it, because the way the Texas law was constructed is highly unusual and essentially unprecedented.

The decision stated explicitly that "this order is not based on any conclusion about the constitutionality of Texas' law."

That's different from Georgia, where a court has said specifically the law is unconstitutional.

"What I think's critical for people to understand is the Supreme Court has not considered whether (the Texas law) is constitutional or not, they've simply said at this point they don't have enough information to stop the law from going into effect," explained 11Alive legal analyst Page Pate. "They will have to wait until there's a test case that works its way up through the courts of appeal and finally makes it to the Supreme Court to rule on the ultimate question of whether it's constitutional." 

In effect, the Supreme Court is in a way waiting for the law in Texas to actually begin functioning - which brings us to how the Texas law works, and how it's significantly different from Georgia's law.

What makes the Texas law unique

It's deliberately designed to be complicated, but more or less what Texas has done is make it extremely difficult for a person or group to sue against the law by re-writing how laws are normally enforced. 

In Georgia, for example, if the "heartbeat" law were in effect and someone broke it, it would be enforced through prosecution by the state. That's sort of how all laws work.

But what Texas did with their law is actually bar their own state officials from enforcing the law - instead, they've created a system where regular people enforce it by suing an abortion provider or anyone who helps a woman get an abortion. 

If they win - which the law is designed to help them do - they get $10,000. That's why it's been likened to a "bounty" system.

And with that mechanism, Texas crafted its law on purpose to make it impossible for anyone to sue the state to stop them enforcing the law - because they don't. 

Pate explains the rough concept:

"So normally if you're going to challenge the constitutionality of a new law like this, you sue the people who work for the state who are supposed to enforce it," he said. "Well they created an obstacle to that because you can't sue the state authorities because they're not enforcing the law, and I think Chief Justice (John) Roberts was especially concerned about that."

Indeed, in assessing this workaround to how law enforcement typically works, Chief Justice Roberts wrote the "statutory scheme... is not only unusual, but unprecedented."

Roberts concluded that basically the whole point of the way the Texas law is constructed is to evade scrutiny of its constitutional substance. 

"The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime," he wrote in his dissent.

The Texas law creates an obvious constitutional question - if you can sidestep normal constitutional boundaries simply by delegating the enforcement of your laws to private citizens, what can't you do? Why can't California, for instance, ban the sale of guns not by stopping anyone from selling guns, but by making it so anyone can sue someone who sells guns and get $10,000 for their efforts?

Pate doesn't think you can, and he thinks any court that finally weighs the constitutional matter will reach the obvious conclusion that the Texas law can't be enforced this way.

"The issue is the way that they wrote the law, the procedure that they set in place, it's not been done before - I think at least some members of the Court expressed a concern about that constitutionality," he said. "Why did they do it? I don't know, to have the law in effect for just a short period of time before it's struck down? Potentially. But yeah I don’t see how under current law that Texas law can be found to be constitutional, don’t see how it can happen."

How this relates to Georgia's situation

All of this makes the Texas law extremely different from Georgia's, which was written more or less as a "normal" law. 

Georgia now has a court date this month, Sept. 24, to argue before the 11th Circuit Court of Appeals why the federal court ruling from last year that blocked the "heartbeat" law from taking effect is wrong. If the 11th Circuit agrees with the federal court judge, Georgia could then appeal to the Supreme Court.

If the Supreme Court took the case at that point, they would be looking at the constitutionality of the law - and of the precedent of Roe v. Wade.

RELATED: Yes, private citizens are tasked with enforcing the new Texas abortion law and could be awarded $10,000

What's unlikely is the 11th Circuit factoring in the Supreme Court decision in Texas into its Georgia decision. The Supreme Court made it clear they weren't ruling on the constitutionality of abortion rights in the Texas decision, and that's precisely what the 11th Circuit is going to consider when it hears the Georgia case.

Where the Supreme Court decision in the Texas case comes into play in Georgia is that if, as seems likely, the 11th Circuit agrees that the "heartbeat" law is unconstitutional, Georgia's legislature in the meantime could just pass a copycat version of the Texas law.

"Is it possible our General Assembly could come back early next year and change the law to mirror what they’ve done in Texas? I bet there will be some people trying to get that done," Pate said. "Perhaps by then we'll have some decision from a federal court on the real issue of the constitutionality of the law itself, but if we don’t then you could see other states following Texas’ lead."

What comes next for Texas

When a court addresses the constitutionality of the Texas law will be determined by when an individual actually sues an abortion provider, or someone else who helped facilitate an abortion, and tries to collect $10,000 under the new law.

At that point, an abortion provider such as Planned Parenthood would argue in court that the law they're being sued under is unconstitutional. That would most likely take place in a state court. (It is also possible, under the concept of diversity jurisdiction, that a national organization like Planned Parenthood could try to have the lawsuit heard in federal court.)

Once that case is decided, either party could appeal the ruling to a Texas Appeals Court and then the Texas Supreme Court.

Then it could make its way back to the U.S. Supreme Court.

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