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Georgia’s Six-Week Abortion Ban Heads to State’s Supreme Court

Nov. 16, 2022, 3:26 PM

Georgia is appealing a trial judge’s order that blocked the state from enforcing a near-total ban on abortions after the sixth week of pregnancy.

The Georgia Supreme Court has jurisdiction to hear appeals from decisions that involve the constitutionality of state laws and permanently enjoin their enforcement, Attorney General Christopher M. Carr said in Tuesday’s notice of appeal from a decision that day by Fulton County Superior Court Judge Robert McBurney.

McBurney ruled that the so-called “heartbeat” ban is void because it was unequivocally unconstitutional under federal law when it was adopted in 2019. Under Georgia’s constitution, a law that was invalid when it was passed by state lawmakers is invalid “forever,” he said.

The law banning abortions before viability, after embryonic cardiac activity is detected, was illegal under controlling US Supreme Court precedent at the time of its enactment, McBurney said. Subsequent events, such as the US Supreme Court’s overruling of that precedent in Dobbs v. Jackson Women’s Health Organization, didn’t make the provision legal under Georgia law, he said.

The decision doesn’t preclude the state legislature from adopting a new six-week abortion ban, McBurney said. But it will have to do so “in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate,” he said.

Women of Color

The law made exceptions for cases of medical emergencies, rape, or incest when there’s an official police report. Physicians faced a potential prison sentence of one to 10 years, loss of their medical licenses, and civil suits by patients for violations.

Abortion advocates, including a group representing women of color, sued Georgia in state court to stop it from enforcing three amendments to Georgia’s LIFE Act. HB 481 violates the Georgia Constitution’s rights to privacy, liberty, and equal protection, according to SisterSong Women of Color Reproductive Justice Collective, Feminist Women’s Health Center, Planned Parenthood Southeast Inc., and others.

McBurney invalidated two of three provisions, but refused to weigh in on the plaintiffs’ assertion that the law violates the Georgia Constitution’s right to privacy, liberty, and equal protection. Whether a post-heartbeat ban violates Georgia’s constitution can’t be decided at present because it isn’t yet the law in the state, he said.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

Bondurant Mixson & Elmore LLP, Caplan Cobb LLC, American Civil Liberties Union Foundation Inc., American Civil Liberties Union Foundation of Georgia Inc., Center for Reproductive Rights, and Planned Parenthood Federation of America represent the plaintiffs.

The case is Sistersong Women of Color Reproductive Justice Collective v. State,, Ga. Super. Ct., No. 2022CV367796, notice of appeal filed 11/15/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com