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Georgia’s Six-Week Abortion Law Challenged in State Court (1)

July 27, 2022, 2:10 PMUpdated: July 27, 2022, 4:17 PM

Abortion advocates, including a group representing women of color, has sued Georgia in state court to stop it from enforcing a law that criminalizes abortions at about six week of pregnancy, with narrowly drawn exceptions.

Georgia joins a growing list of states sued by abortion providers seeking to invalidate restrictions on the basis that state constitutions give greater protections to reproductive rights than the federal constitution. Similar cases are pending in states such as Kentucky, Utah, North Dakota, and South Carolina.

Georgia’s law, known as HB 481, violates the Georgia Constitution’s rights to privacy, liberty, and equal protection, a complaint filed in the Fulton County Superior Court says. SisterSong Women of Color Reproductive Justice Collective is the lead plaintiff, joined by Feminist Women’s Health Center, Planned Parenthood Southeast Inc., and others.

HB 481 bans abortions after embryonic cardiac activity is detected, except in cases of medical emergencies, rape, or incest where there’s an official police report. Physicians who violate the law face a potential prison sentence of one to ten years, loss of their medical licenses, and civil suits by patients.

A federal court previously barred the law’s enforcement, finding it likely violated the federal constitutional right to abortion. But the US Court of Appeals for the Eleventh Circuit lifted the injunction July 20, after the US Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, the decisions establishing the federal right.

The Eleventh Circuit took the unusual step of putting the law into effect immediately, shutting down abortion in the state without notice to providers who perform abortions. The move “caused chaos and devastation across Georgia, as patients with scheduled abortions—some already in clinic waiting rooms—learned they could no longer obtain this time-sensitive care in Georgia,” the complaint says.

The Georgia Constitution prohibits unwarranted state interference with life, body, and health, the complaint says. This liberty interest inherently includes the right to decide whether to continue a pregnancy, it says.

Moreover, there is no state interest that justifies forcing pregnant people to face “the profound risks and life-altering consequences of pregnancy and childbirth” at this early stage, the complaint says. Georgia has one of the highest pregnancy-related death rates in the US, with 28.8 maternal deaths per 100,000 live births in 2018-2020, it says.

Black women are especially vulnerable, as they are 2.3 times more likely to die than white women, the complaint says. Additionally, Georgia has one of the highest infant mortality rates in the nation, it says.

The law also violates Georgians’ privacy rights by allowing district attorneys broad access to the medical files of anyone seeking an abortion, the complaint says.

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

Causes of Action: Georgia Constitution.

Relief: Declaratory judgment, permanent injunction, costs and attorneys’ fees.

Response: “We are currently reviewing this filing and we will uphold our constitutional duty, as we do with all lawsuits against the state,” Kara Richardson, spokeswoman for Georgia Attorney General Chris Carr (R), told Bloomberg Law.

Attorneys: 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.

The case is SisterSong Women of Color Reproductive Justice Collective v. Georgia, Ga. Super. Ct., No. 2022cv367796, complaint filed 7/26/22.

(Case caption updated to add docket number in 16th paragraph.)

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; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com