A Fulton County judge has ruled that Georgia’s six-week abortion ban is unconstitutional because it was written two years before the Supreme Court’s decision to overturn Roe v. Wade in violation of what was then considered to be settled law, saying that the state’s law “did not become the law of Georgia when it was enacted, and it is not the law of Georgia now.”
Superior Court Judge Robert McBurney wrote:
“The State argues that Dobbs reflects no change in constitutional law ‘because there was never a federal constitutional right to abortion.’ Except there was. For 50 years. And we know it because the very same Supreme Court told us so. Repeatedly.”
In Tuesday’s ruling, the order struck down two of the three parts of HB 481 – Living Infants Fairness and Equality (LIFE) Act – challenged by the plaintiffs.
Section 4 criminalized abortions occurring after an unborn child has a detectable heartbeat. It also added several exceptions to the post-heartbeat abortion ban to include certain non-mental health medical emergencies and rape or incest (but only if a police report is filed).
Section 11, the other section that was struck down, required that any physician who performs an abortion after detecting a fetal heartbeat must report it to the Department of Public Health.
Condemned by reproductive, civil, and women’s rights groups, the state’s 2019 “heartbeat” bill went into effect in July of this year, banning abortion after six weeks — before many women even know they are pregnant.
The 11th Circuit Court of Appeals lifted a previous court’s injunction, in what the ACLU asserts was an “unorthodox” move by ordering an immediate stay, rather than the typical 28-day waiting period before the mandate went into effect.
The American Civil Liberties Union, the ACLU of Georgia, the Center for Reproductive Rights, Planned Parenthood Southeast, and Planned Parenthood Federation of America released a joint statement criticizing the stay:
“This is a highly unorthodox action that will immediately push essential abortion care out of reach for patients beyond the earliest stages of pregnancy. Across the state, providers are now being forced to turn away patients who thought they would be able to access abortion, immediately changing the course of their lives and futures. This is horrific. We’ll continue doing everything in our power to fight for abortion access in Georgia in the face of these harmful attacks on people’s ability to control if and when to have a child.”
McBurney’s ruling came in a lawsuit that sought to strike down the ban on multiple grounds, including that it violates the Georgia Constitution’s right to privacy and liberty by forcing pregnancy and childbirth on women in the state.
The lawsuit filed by doctors and advocacy groups in July also argued that Georgia’s abortion ban was invalid because it violated the U.S. Constitution and U.S. Supreme Court precedent when it was enacted. McBurney agreed with that argument in his decision.
His Honor did leave the door open for the state legislature to enact another ban, but they’ll have to go back to the drawing board – figuratively anyway.
McBurney wrote in his decision that with the overturning of Roe, “the prohibition on abortions provided for in the 2019 law may someday become the law of Georgia.”
“Unlike the debate that informed the passage of H.B. 841, whose facially unconstitutional six-week ban doomed the law upon enactment and made for an essentially symbolic vote for legislators, a next round of abortion legislation will carry real consequences for legislators and their constituents alike,” the judge wrote.
“At which time the debate will promptly return to the courts — but it must start with a Legislature acting within the bounds of the current constitutional framework,” Judge McBurney concluded.
Kara Richardson, spokesperson for the Georgia Attorney General says the AG’s office plans to file an immediate appeal.
Read the court’s decision here.
Original reporting by Associated Press, Fox5 Atlanta.
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