Judge Steve C. Jones, of the U.S. District Court for the Northern District of Georgia. (Photo: John Disney/ALM)

District Court Judge Steve Jones of the Northern District of Georgia in Atlanta made two disclosures Monday when attorneys on both sides of Georgia's abortion ban argued their motions for summary judgment on a videoconference.

Jones said he does not intend to decide until after the U.S. Supreme Court either adjourns at the end of June or rules in another pending abortion case: Russo v. June Medical Services.

The answer Jones said he is watching for in Russo v. June is "whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a close relationship with their patients and a hindrance to their patients' ability to sue on their own behalf."

The U.S. Supreme Court also is being asked in the same case whether the U.S. Court of Appeals for the Fifth Circuit decision upholding Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court's binding precedent in Whole Woman's Health v. Hellerstedt.

Jones said he believes the high court's ruling in Russo v. June and June v. Russo could affect his decision. Jones said he is looking for guidance on the standing of the lead plaintiff, SisterSong Women of Color Reproductive Justice Collective, to challenge Georgia's law set up by House Bill 481 banning abortion upon detection of fetal cardiac activity.

Elizabeth Watson of the American Civil Liberties Union Foundation in New York argued for the plaintiffs, which also include the Feminist Women's Health Center, Planned Parenthood and other abortion providers.

Jeffrey Harris of Consovoy McCarthy in Washington, D.C., argued for Georgia Attorney General Chris Carr and Gov. Brian Kemp.

Ironically, in support of his argument that SisterSong lacks standing to sue, Harris cited Roe v. Wade, the landmark Supreme Court decision that has made abortion legal since 1973. But the court also ruled that another plaintiff under the name of Jane Doe lacked standing to sue because she was not currently pregnant, Harris said.

Watson said Harris was wrong because SisterSong represents not one person but many women—especially women of color—who would be forced to continue pregnancies against their will under the ban. She said the U.S. Court of Appeals for the Eleventh Circuit has a long-standing precedent for holding that an organization can sue on behalf of individuals it represents.

The attorneys also argued over whether the court should sever parts of the Georgia law and let them stand, even if the abortion ban is held to be unconstitutional. The main point in this debate is the part of the Georgia law conferring personhood on embryos and fetuses. Harris said SisterSong should want to keep that part of the law because it would require tax deductions for unborn children and child support payments from unmarried fathers of unborn babies.

But Watson said the entire law is unconstitutional, so parts of it cannot be saved. "They are seeking to ban abortion by making fetuses into persons," she said. That provision would confuse other legal issues by amending hundreds of parts of the state constitution.

Harris countered, "They just haven't met the burden to strike down this whole law."

Now for the other disclosure the judge made. He's finding the virtual hearings he must hold because of the COVID-19 pandemic to be a poor substitute for the real thing.

"I really miss seeing the lawyers in person," Jones said at the start of the 10 a.m. hearing. "I miss you all. But this is what we have for now."

At the conclusion more than two hours later, Jones said, "I look forward to seeing you all in person, not on Zoom."