Trial begins in challenge to Georgia’s six-week abortion ban | Courthouse News Service
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Trial begins in challenge to Georgia’s six-week abortion ban

In a courtroom packed with spectators, a Superior Court judge in Atlanta Monday heard arguments challenging the constitutionality of the state's restrictive abortion law.

ATLANTA (CN) — A trial began Monday to determine if Georgia's law banning abortion after six weeks of pregnancy violates the state's constitutional right to privacy.

Abortion rights advocates and doctors filed their lawsuit in July, arguing the ban forces "pregnancy and childbirth upon countless Georgians," and prohibits "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.

Fulton County Superior Court Judge Robert McBurney has scheduled two days of testimony but said Monday that he does not intend to issue a ruling until after the election on Nov. 8.

The law 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. This 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 that they are pregnant yet.

In July, the 11th Circuit allowed Georgia to begin enforcing the abortion law, which was passed by Republican Governor Brian Kemp in 2019. The federal appeals court issued the ruling less than a month after the U.S. Supreme Court overturned Roe v. Wade, the 1973 ruling that guaranteed the right to abortion nationwide.

Julia Kaye from the American Civil Liberties Union argued Monday that if just taking an unauthorized picture of someone can be a violation of the right to privacy, than so is the intrusion of forced pregnancy and childbirth.

Georgia Solicitor General Stephen Petrany, representing the state, said that Georgia’s privacy protections do not extend to abortion because it affects a “third party."

"We disagree that merely being developing or being dependent on others has anything to do with this," said Petrany.

Kaye explained to the court that there is no third person, because for at least the first five months of pregnancy, the embryo and then fetus is entirely dependent on the mother's body and could not survive outside of the womb.

"That's not what the legislature has said," said Judge McBurney.

"So, where is it that the legislature is impermissibly overstepping its bounds to say, science is fascinating but the earth isn't as round as you think and life begins at fertilization or fetal heartbeat, and once you're there that's the equivalent of a walking, talking, voting, majority-aged individual and you may not impinge on that person's rights and that six-week old fetus, that looks more like a little reptile curled up, enjoys the full panoply of rights that your collogues and I enjoy as Georgia citizens."

Judge McBurney asked the state's counsel what would happen if the hospital is subpoenaed for medical records, but the patient wants to invoke their privacy rights to their medical information. Petrany said he wasn't sure how the practice would operate and that it would be "imprudent" to decide these matters over "speculative concerns," arguing that the groups challenging the law don't have standing.

Carrie Cwiak, one of the plaintiffs in the lawsuit, testified that the law doesn't provide clear guidance for doctors and undermines their ability to practice their profession and their relationship with patients.

"A restrictive ban such as this only harms the health of Georgians and their families. Almost half of all pregnancies in the United States are unintended and about half of those people are using contraception so they're trying actively not to get pregnant," said Cwiak, who is the chief of obstetrics and gynecology at Emory University Hospital in Midtown Atlanta.

While the law allows for later abortions when the mother’s life is at risk or a serious medical condition renders a fetus unviable, Cwiak said that in certain miscarriage situations, fetal cardiac activity can still be detected, making it confusing for medical professionals on whether and when they can intervene.

“The fact that the bill has the consequence criminal prosecution if you have a different interpretation than the legal interpretation, that’s very distressing to physicians,” she said.

Christopher Bartolomucci, an attorney representing the state, attempted to discredit Cwiak by asking about her past tweets, including a retweet from someone that said its okay to want an abortion just because you don't want to be pregnant.

"I believe you don't need a tragic story to have access to reproductive justice," she replied.

Another doctor, Whitney Rice, testified on how the law not only increases the rate of maternal mortality — Georgia's is among the ten highest in the nation. With Black women in the state being 2.3 times more likely to die from pregnancy, she said the ban also exacerbates racial disparities.

People who seek abortions in Georgia are disproportionately more likely to be Black, have lower incomes, and lack access to health care, said Rice who is Emory University's Director of the Center for Reproductive Health Research in the Southeast and Assistant Professor in the Department of Behavioral, Social and Health Education Sciences.

Rice explained that a variety of reasons can cause a delay in a person seeking care after six weeks of pregnancy, such as getting time approved off work, raising the required funds, and physiological reasons including menstrual irregularities that can cause pregnancy to be detected later.

She also noted that the ratio of OB-GYNs to people in Georgia is below the national average, requiring many people to travel long distances for care.

The law includes exceptions for rape and incest if a police report is filed. However, most cases of these situations are never reported to the police, according to testimony from Dr. Samantha Meltzer-Brody, a psychiatrist who has specialized in perinatal depression.

"Suicide is the greatest cause of maternal mortality in the world," she said, explaining the impact of forced pregnancy on people suffering mental illnesses.

"The idea that were going to exclude psychiatric illness, which is a medical illness, to me is just an enormous injustice and will result in women dying."

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