[ 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, USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 1 of 162 Opinion of the Court 20

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in her official capacity, JOHN S. ANTALIS, M.D., GRETCHE N 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., USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 2 of 1620

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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 Medica l 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 of ficial capacity,

Defendants

- Appellants, USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 3 of 164 Opinion of the Court 20

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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 N o. 1:19

- cv

- 02973

- SCJ

____________________
Before W ILLIAM P RYOR , Chief Judge, L AGOA , Circuit Judge, and
S CHLESINGER , * District Judge.

W ILLIAM P RYOR , 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 challen ging 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),

* The Honorable Harvey Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation. USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 4 of 1620

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makes clear that no right to abortion exists under the Constitution,

so Georgia may prohibit them

. And the expanded definition of natural person is not vague on its face. 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

. 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 l quotation marks omitted) . Section 4 prohibit s abortions after a fetal heartbeat is detected with enumerated exceptions

. Id. § 4(b). The Act also clarifies that remov al of an “ ectopic pregnancy ” or “ a dead unborn child caused by spontaneous abortion ” is not an “abortion

. ” Id. § 4(a)(1) (internal quot ation 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

USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 5 of 166 Opinion of the Court 20

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fetal

- he artbeat abortions violated women’s substantive due process 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 quotation marks omitted)
, is unconstitutionally vague on its face

. The abortionists’ complaint requested preliminary and permanent injunctions restraining the enforcement of the Act, a declaratory judgment that the Act violates the Fourteenth Am endment, 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 abortionists met the burden for a preliminary inju nction 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 preliminar y injunction prohibiting the state offic ials from enforcing any provision of the Act. After discovery, the parties moved for summary judgment. The abortionists argu ed that the prohibition o f pre

- viability but post

- fetal heartbeat abortions was unconstitut ional under the Fourteenth Amendment as interpreted in Roe v. Wade , 410 U.S. 1 1 3 , 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 A ct was unconstitutionally vague. The y argued that USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 6 of 1620

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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 argue d that the Act d id not give them “fair notice” and lacked “explicit standards” to apply. (Intern al quotation marks omitted.)

The state officials responded that the definition was not unconstitutionally vague. The state officials contended that to succeed 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 argue d that an example of a valid application exists in the Act where it provides that “[u]nless otherwise p rovided 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 argue d that the definition “functions clearly” there “by providing that unborn children with detectable heartbeats shall be included in the State’s population

- based determinations.”
The district court granted the abortionists’ motion for summary judgment, entered a permanent injunction prohibit ing the

stat e 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 via bility,” USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 7 of 168 Opinion of the Court 20

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so the Act violated the Fourteenth Amendment because it prohibited 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 conductmight violate statutes amended by the [Act]” and gave some examples 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 suppor ted entering a permanent injunction, and that the other sections of the Act were inseverable from the abortion prohibition and the definition of natural person.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. W e now lift our earlier stay and consider this ap peal 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 USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 8 of 1620

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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 arguments that other provisions of the Act are inseverable from the abortion prohibition are now irr elevant. 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 quotation marks omitted)

. So, we “must” sustainan 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 o f” 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 ofmaternal health and safety; the elimination of particularly grues ome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 9 of 1610 Opinion of the Court 20

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prevention of discrimination on the basis of race, sex, or disability.” Id. The Supreme Court explained that its decisions to the contrary in Roe and Casey were “egregiously wrong from the start.”
See i d. at 2243. The Supreme Court declared that Roe was nothing but an exercise of “raw judicial power
, ” id. at 226 5 (quoting Roe
, 410 U.S. at 222 (White, J., dis senting)), that “resemble[d] the work of a legislature,” id. at 226 6

. And it held “ that Roe and Casey must be overruled.” Id. at 2242.
As a result , we acknowledge that Dobbs abrogates manyprevious 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 B RYAN A. G ARNER ET AL

. , T HE L AW OF J UDICIAL P RECEDENT § 6 0, 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 abort ion 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 abrogate d 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); Planned USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 10 of 1620

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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 p rohibition on abortions after detectable human heartbeat is rational. See H.B. 481 § 4(b). “[R]espect for and preservation of prenatal life at all stages of development” is a legitimate
interest

. Dobbs , 142 S. Ct. at 2284. The Georgia Legislature’s finding s acknowledge a state interest in “providing full legal recognition to an unborn child.” H.B. 4 81 § 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 f or Vagueness o n Its Face. The parties continue to dispute whether the Act’s definition of natural person is unconstitutionally vague on its face. The Actdefines a “‘[n]atural person’” as “any human being including an unborn chi ld.” 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 noticeand arbitrary enforcement. “An unconstitutionally vague law invites arbitrary enforcement . . . if it leaves judges and jurors f ree to USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 11 of 1612 Opinion of the Court 20

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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 w hat conduct is applicable that persons of common intelligence must necessarily guess at its meaning and differ as to its application.” In digo Room, Inc. , 710 F.3d at 1301 ( internal quotation marks omitted ) (alteration in original) . The inquiry into whether a statute is vague looks only to whether the “language of the [law] itself” is vague. Id. at 1302 (internal quotation marks omitted)

. “[F]or a facial” void

- for

- vagueness challenge to succeed
, “the challenger must establish that n o 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. (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 precludes facial invalidity.” Id. (internal quotation marks omitted). USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 12 of 1620

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The abortionists earlier attempt ed to avoid this demanding standard by arguing that the definition “renders the Georgia Code
vagu e in a manner that chills constitutionally protected conduct, namely the provision of abortion.” They argued that “[t]he Supreme Court has made clear that in the abortion context .

. . facialrelief is appropriate when a vague law would impose criminal penalties.” (Citing City of Akron v. Akron Ctr. for Reprod. Health, Inc.
, 462 U.S. 416, 451 (1983).) But Dobbs forecloses that argument because it makes clear that abortion is not constitutionally protected. Dobbs , 142 S. Ct. at 2242.

Because an abortion

- spec ific 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 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 abortion ists’ facial claim

. T he Supreme Court explain ed 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 challenge s .” Id. T he Supre me Court followed that statement with a footnote citation that compar es the standards for facial constitutional challenges from Casey and United States v. Salerno , 481 U.S. 739 (1987). See Dobbs , 142 S. Ct. at 2275 n.60. In USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 13 of 1614 Opinion of the Court 20

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Casey , the Supreme Court explain ed 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 cha llenge 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 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 130 2 . 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 reason able intelligence is USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 14 of 1620

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capable of understanding that the “ core meaning [of] ” the provision is to expand the definition of person to include unborn humanswho are carried in the womb of their mother at any stage of development. See Indigo Room, Inc. , 710 F.3d at 130 2

. To be sure, t here 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 potential applications to const itutionally 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 promulgate s 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 H ARV

. L. R EV

. 593, 607 (1958). Later, the legislature enacts a modifie d definition of vehicle for th ose laws that reads “vehicle means any automobile and includes bicycle s .” The 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
, W EBSTER ’ S N EW I NT ’ L D ICTIONARY ( 2 d 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 abortio n less favorabl y . Because a constitutional right to abortion does not exist, we decline to engage in abortion exceptionalism. USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 15 of 1616 Opinion of the Court 20

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IV. CONCLUSION

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

. USCA11 Case: 20-13024 Date Filed: 07/20/2022 Page: 16 of 16