Georgia Supreme Court justices listen to arguments in a case challenging whether the state’s six-week abortion ban should be considered void since it was passed before Roe v. Wade was overturned. Jill Nolin/Georgia Recorder (2023 file photo)
This story was updated at 5:20 p.m. on Monday, Oct. 7, 2024.
Georgia’s six-week abortion ban is back in effect after a Georgia Supreme Court decision Monday shut off access to expanded services just one week after a Fulton County judge ruled that the 2019 law is unconstitutional.
Local prosecutors, though, will continue to be blocked from acquiring health records where an abortion has been performed under the state Supreme Court’s ruling.
Six justices – Michael P. Boggs, Sarah Hawkins Warren, Charles J. Bethel, Carla Wong McMillian, Shawn Ellen LaGrua, and Verda M. Colvin – backed the decision to block the lower court’s ruling for now.
Justice Nels S.D. Peterson was disqualified from the proceeding for an unstated reason, and Justice Andrew A. Pinson did not participate.
Justice John J. Ellington dissented on the decision to let the ban go back into effect while the appeal is pending.
“Fundamentally, the State should not be in the business of enforcing laws that have been determined to violate fundamental rights guaranteed to millions of individuals under the Georgia Constitution,” Ellington wrote in his dissent.
“The ‘status quo’ that should be maintained is the state of the law before the challenged laws took effect,” he wrote.
Georgia’s 2019 law bans most abortions once embryonic cardiac activity is detected, which is about six weeks into a pregnancy and before most women know they are pregnant. It took effect about a month after the U.S. Supreme Court ended the federal right to an abortion in 2022.
Fulton County Superior Court Judge Robert C. I. McBurney struck down the law as unconstitutional under the Georgia Constitution, finding that women should have the freedom to decide whether to be “human incubators for the five months leading up to viability.”
“It is not for a legislator, a judge, or a Commander from The Handmaid’s Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could – or should – force them to serve as a human tissue bank or to give up a kidney for the benefit of another,” McBurney wrote.
GET THE MORNING HEADLINES.
After last Monday’s ruling, Attorney General Chris Carr’s office quickly pressed for the state Supreme Court to reinstate the six-week ban, arguing that “unborn children are at risk every day that the injunction continues.”
The last week was reminiscent of 2022 when McBurney first struck down the law because it was passed before the U.S. Supreme Court’s landmark ruling.
Then, too, the Georgia Supreme Court reinstated the six-week ban after a week and at Carr’s behest.
The Supreme Court ultimately sided with the state a year ago on what was considered a narrow legal issue.
Now, the court is taking up the heart of the legal challenge: Does the Georgia Constitution’s protections for liberty and privacy include a right to an abortion?
The plaintiffs and their attorneys condemned Monday’s order in strong terms and chided the state for arguing in its petition that the medical providers and reproductive rights advocates challenging the case would “not suffer much harm” if the state Supreme Court allowed the ban to be enforced.
“The superior court itself impliedly determined that Plaintiffs are unlikely to be seriously harmed, otherwise it would not have waited nearly a year after remand to issue its short opinion,” the state’s attorneys wrote in a filing last week.
Opponents of the six-week ban argue the recent revelations that two pregnant women died in 2022 while trying to have an abortion show the ban’s threat to women. The 2019 law’s “restrictions and chilling effect have claimed the lives of at least two Black women whose preventable deaths are directly traceable to the Ban,” the plaintiffs’ attorneys wrote in a filing over the weekend.
“Gov. Kemp and Attorney General Carr told the state Supreme Court that reinstating an abortion ban that is literally killing Georgia women would not cause ‘much harm,’” Julia Kaye, senior staff attorney with the ACLU Reproductive Freedom Project, said in a statement Monday. “And the state Supreme Court apparently believed that cruel lie.
“Seeing state politicians show such little empathy or respect for Georgians’ health and lives only doubles our resolve to keep fighting until every person has the freedom to make personal medical decisions during pregnancy and the power to chart the course of their own lives,” she said.
Anti-abortion advocates celebrated the order.
“Thanks to the swift work of (Carr) and his team and the common sense jurisprudence of the Georgia Supreme Court – our state is back to the business of saving lives!” Cole Muzio, president of Frontline Policy Action, posted on social media.
YOU MAKE OUR WORK POSSIBLE.