State Supreme Court upholds Georgia’s six-week abortion ban

Attorney General applauds ruling; Ossoff calls for law’s repeal; Biden-Harris reelection reacts.
The ruling in effect upholds Georgia’s LIFE Act, which is also known as the “heartbeat bill.”
Published: Oct. 23, 2023 at 3:39 PM EDT|Updated: Oct. 24, 2023 at 4:04 PM EDT
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ATLANTA, Ga. (Atlanta News First) - The Georgia Supreme Court overturned on Tuesday a lower court’s ruling that halted the state’s controversial ban on abortions after six weeks of pregnancy, and sent the case back to Fulton County Superior Court to consider the merits of the other challenges brought by the law’s opponents.

The ruling in effect upholds Georgia’s LIFE Act, which is also known as the “heartbeat bill,” which prohibits abortions after a fetal heartbeat is detected, usually at around a pregnancy’s six-week mark. Tuesday’s state Supreme Court’s ruling focused on whether the legislation is viable since it was passed in 2019 when Roe v. Wade was still in effect and guaranteed a federal right to abortion.

Georgia’s law was passed by state lawmakers and signed by Republican Gov. Brian Kemp in 2019 but had been blocked from taking effect until the U.S. Supreme Court overturned Roe v. Wade, which had protected the right to an abortion for nearly 50 years. The 11th U.S. Circuit Court of Appeals allowed Georgia to begin enforcing its abortion law just over three weeks after the high court’s decision in June 2022.

A legal consideration known as “void ab initio” dictates lawmakers can’t pass an unconstitutional law, knowingly or unknowingly, even if it later becomes constitutional. It’s the consideration Fulton County Superior Court Judge Robert McBurney used to put a hold on the ban almost a year ago. The state Supreme Court reinstated the ban while the case worked its way through the legal system.

On Tuesday, the Georgia Supreme Court said, “Today’s majority opinion further explains that Georgia courts must follow the U.S. Supreme Court’s most recent pronouncement on the meaning of the U.S. Constitution when determining whether a statutory law violates that Constitution.

Read the entire ruling here.

“We conclude that the trial court erred,” the ruling said. “The holdings of United States Supreme Court cases interpreting the United States Constitution that have since been overruled cannot establish that a law was unconstitutional when enacted and therefore cannot render a law void ab initio. Because the trial court reached the opposite conclusion, we reverse its ruling, and we remand the case to the trial court to consider in the first instance Appellees’ other challenges to the LIFE Act.”

“Today’s Georgia Supreme Court decision ensures that tens of thousands of children with beating hearts will continue to be protected from brutal abortions,” said Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America. “It is the latest vindication of the will of Georgians, who have compassion for both babies and mothers, along with lawmakers like Governor Kemp and many others who heard them and acted.

“Twenty-five states have pro-life protections in their law in the new Dobbs era,” Dannenfelser said. “The majority of these states protect unborn children at least when their heartbeat can be detected, a point when science shows they have more than a 90% chance of surviving to birth.”

“We are pleased with the court’s decision and will continue to defend the constitutionality of Georgia’s LIFE Act,” Georgia Attorney General Chris Carr said.

The opponents of Georgia’s heartbeat bill in the lawsuit is an organization of pro-choice advocates known as Sistersong Women of Color Reproductive Justice Coalition.

“Planned Parenthood Southeast’s health centers remain open, and we will continue to provide abortion care in Georgia under the severe restrictions of this law, but we know that’s not enough,” said Carol McDonald, president and CEO of Planned Parenthood Southeast Advocates. “Make no mistake: Today’s decision will cause irreparable harm to the people of Georgia, the majority of whom want abortion to be legal. At the ballot box in 2024 and beyond, Planned Parenthood Southeast Advocates intends to make sure that Gov. Kemp, AG Carr and their anti-abortion allies in the legislature answer for the public health crisis they’ve created across our state, which has forced so many to remain pregnant against their will or flee their communities for basic health care.”

The reelection campaign of President Joe Biden and Vice President Kamala Harris said Tuesday’s decision “is a direct result of Donald Trump, Brian Kemp, and MAGA Republicans’ attacks on a woman’s fundamental freedom to make her own health care decisions.

“As MAGA Republicans running for president champion a national abortion ban, the stakes couldn’t be higher,” said Julie Chavez Rodriguez, campaign manager. “This election could determine whether every woman in America faces the same terrifying reality Georgians will now face.”

U.S. Sen. Jon Ossoff, one of Georgia’s two Democratic senators, criticized the state’s abortion ban.

“Georgia’s six-week abortion ban, one of the most extreme in the nation, strips women of autonomy in the most personal health decisions.” Ossoff said. “More than half of Georgia counties have no OB/GYN, and we have one of the worst maternal mortality rates in the country.

Georgia’s extreme abortion ban risks worsening our state’s women’s health crisis,” he said. “I again call on Georgia’s state legislature and the governor to repeal this extreme abortion ban.”

Plaintiffs who brought the lawsuit, like the American Civil Liberties Union, will now try a different approach to get the law overturned: privacy laws.

Because Georgia’s LIFE Act requires doctors to report abortion procedures to the state, it may be a violation of the privacy rights of Georgia women.

“The right to privacy under the Georgia constitution and under Georgia case law is very robust and more expansive than the federal right to privacy,” said Cory Isaacson, legal director for the ACLU of Georgia. “If the legislature is legislature is going to try to intrude on Georgian’s right to privacy and their right to bodily autonomy, it needs to be necessary for them to do so in order to protect a compelling state interest.”

“We certainly have an interest to preserve privacy, but when that’s counterbalanced with this basic right to life, how does a General Assembly weigh those two things?” said Georgia Senator Ed Setzler, (R) - Acworth. “Our constitution says that it is the paramount duty of government to preserve life. That recognition is crystal clear in state law. [Plaintiffs] are creating sort of a tortured argument to try to argue something different.”

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