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Georgia Supreme Court hears challenge to six-week abortion ban

The state is asking the justices to overturn a lower court ruling that the law is unconstitutional because it was enacted before the Supreme Court overturned Roe v. Wade.

ATLANTA (CN) — The Georgia Supreme Court heard arguments Tuesday in the state’s appeal of a judge's decision to strike down a law banning abortions after six weeks of pregnancy.

Fulton County Superior Court Judge Robert McBurney overturned the law in November after hearing arguments from abortion rights advocates and doctors, ruling that it violated U.S. Supreme Court precedent at the time it was enacted.

After the law was signed by Republican Governor Brian Kemp in 2019, it was blocked from taking effect due to Roe v. Wade, the 1973 ruling that guaranteed the right to abortion nationwide.

But after the U.S. Supreme Court overturned the nearly 50-year-old precedent last June with its decision in Dobbs v. Jackson Women’s Health Organization, the 11th Circuit gave permission for the Peach State to begin enforcing its anti-abortion law.

McBurney wrote that when the law was enacted, "everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability."

“And yet the LIFE Act, through Section 4, did just that,” the judge wrote.  

He added, “A doctor faced with a request to end a pre-viability pregnancy, i.e., at a time when the fetus absolutely could not survive outside the mother’s womb, would be committing a felony if she honored her patient’s wishes. Such bans were banned. Section 4 of H.B. 481 was void ab initio. It did not become the law of Georgia when it was enacted and it is not the law of Georgia now.”

The state attorney general’s office appealed the ruling to the Georgia Supreme Court, which put a halt on McBurney’s decision and kept the law in place until it could hear arguments Tuesday.

“Under Dobbs, the actual controlling decision in this case, the LIFE Act is plainly valid,” Georgia Solicitor General Stephen Petrany told the court Tuesday.

Justices Verda Colvin, Sarah Warren and Charles Bethel expressed concern with siding in the plaintiffs’ favor, as the Dobbs decision declared that the U.S. Supreme Court's precedents in Roe and Planned Parenthood v. Casey were wrongly decided from the beginning. 

Julia Stone from Atlanta-based firm Caplan Cobb argued that state legislatures exceed their authority when they enact laws that violate a constitutional right declared by the judicial branch. To enact this law, she said, the Georgia Legislature would have to pass it again post-Dobbs.

“This is not a case where there was gray area in this in 2019, this was a case where there were 50 years of Supreme Court precedent,” Stone argued.

Warren said that argument “doesn’t account for retroactivity for the application of judicial decisions.”

Dobbs expressly says prior precedent was wrong,” Bethel echoed.

Justices Nels Peterson and Andrew Pinson were recused from Tuesday’s arguments. 

The law at issue - known as the Living Infants Fairness and Equality, or LIFE, Act – bans most abortions once a “detectable human heartbeat” is present, although an embryo's heart is not actually formed yet at the six-week mark. It is merely the earliest point in which ultrasounds can detect electrical impulses from the cells inside an embryo, a point at which many women don't even know they are pregnant yet.

Last July, the SisterSong Women of Color Reproductive Justice Collective, Planned Parenthood Southeast and multiple abortion providers and doctors from across Georgia filed their lawsuit challenging the LIFE Act. The complaint argues that the ban violates the Georgia Constitution's right to privacy by forcing "pregnancy and childbirth upon countless Georgians" and prohibiting "medically appropriate care for patients suffering pregnancy complications and miscarriages." 

They further claim it invades privacy by granting state officials and district attorneys "virtually unfettered" access, without a subpoena, to the medical files of anyone who seeks an abortion.

Multiple medical professionals testified in their defense during a two-day bench trial before McBurney in October

According to Julia Kaye from the American Civil Liberties Union, those right to privacy claims have yet to be decided on in the Fulton County Superior Court.

Monica Simpson, the executive director of SisterSong Women of Color Reproductive Justice Collective, said she felt a “disconnect” in the courtroom Tuesday. 

“We live in a state that has one of the highest maternal mortality rates in the country,” and “suffer a shortage of OB-GYN care and essential health care,” Simpson said.

“This ban is hurting Georgians and restricting our ability to manage our own health care and to protect our own bodily autonomy,” she added.

Kwajelyn Jackson, executive director at Feminist Women’s Health Center in Atlanta, said her staff continues to work under the constraints of the law to provide services, but have to “turn away numerous patients every day who are in life threatening and life changing situations.”

Categories:Appeals, Civil Rights, Health, Law, Regional

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