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Georgia high court reinstates six-week abortion ban

The decision puts an injunction on hold while the justices consider the state's appeal in a case challenging a law prohibiting most abortions once a fetal heartbeat can be detected.

ATLANTA (CN) — Georgia’s controversial abortion law restricting the procedure once a doctor can detect fetal cardiac activity will immediately go back into effect, the state's top court ordered on Wednesday.

The decision reverses an order issued by a lower court judge just last week. Fulton County Superior Court Judge Robert McBurney barred state officials from enforcing the 2019 law, which had been in effect since July and has been challenged by abortion rights groups.

The one-page order handed down by the Georgia Supreme Court grants an emergency stay of the injunction blocking Georgia's Living Infants Fairness and Equality (LIFE) Act while the state’s appeal continues.

The court did not give any reasoning for the decision but noted that seven of the nine justices had agreed to the order. One judge was disqualified and one did not participate.

It is unclear when the Georgia Supreme Court will issue a decision permanently overturning or upholding the lower court’s ruling.

"It is unconscionable that the Georgia Supreme Court has chosen to deny pregnant people the ability to decide what is best for their own lives and futures," Amy Kennedy, vice president for external affairs of Planned Parenthood Southeast, said in a statement on Wednesday.

The LIFE Act prohibits abortions once an ultrasound can detect electrical impulses from the cells inside an embryo – described by the law as a “detectable human heartbeat" – typically around six weeks of pregnancy and before most people know they are pregnant.

Finding that the law violated U.S. Supreme Court precedent under Roe v. Wade at the time it was enacted, McBurney ruled that the LIFE Act was void when it was passed and could not be enforced. The decision caused abortion access in Georgia for the past week to revert to the pre-ban rule allowing abortions until 22 weeks of pregnancy.

Attorneys for the state challenged the ruling in an emergency filing on Friday, telling the Georgia Supreme Court that it would be in the public interest to block McBurney’s decision while the case is being considered.

“The harm to the State is significant and irreparable,” the state attorney general’s office said in the filing. “Unborn children are at risk every day that the injunction continues.”

Monica Simon, executive director of Sistersong Women of Color Reproductive Justice Collective, the lead plaintiff in the lawsuit challenging the LIFE Act, called Wednesday’s decision “disappointing and deeply frustrating.”

“It is outrageous that this extreme law is back in effect, just days after being rightfully blocked,” said Alice Wang, staff attorney at the Center for Reproductive Rights, in a statement. “This legal ping pong is causing chaos for medical providers trying to do their jobs and for patients who are now left frantically searching for the abortion services they need."

Although the law was signed by Republican Governor Brian Kemp in 2019, it was immediately challenged by abortion rights advocates and blocked from taking effect in 2020 due to the U.S. Supreme Court’s 1973 ruling in Roe, which guaranteed a right to an abortion until a fetus was viable outside the mother’s body.

The Supreme Court’s June decision in Dobbs v. Jackson Women’s Health Organization overturned the precedent and paved the way for a ruling from the 11th Circuit three weeks later allowing the LIFE Act to take effect.

McBurney opined in his Nov. 15 decision that the Dobbs ruling did not retroactively make the 2019 passage of Georgia’s abortion law legal. The decision came after a two-day bench trial in the lawsuit filed by abortion rights advocates and doctors claiming that the six-week ban violates the Georgia Constitution’s right to privacy by forcing “pregnancy and childbirth upon countless Georgians.”

In their appeal, attorneys for the state argued that McBurney’s reliance on the now-overruled Roe precedent is “unsupported and irrational.”

“No other court has ever held that an overruled judicial opinion can, like a zombie rising from the grave, invalidate otherwise perfectly valid laws,” the appeal states.

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