High Court of Georgia Reinstates Ban on Abortions after Six Weeks

Georgia’s Supreme Court recently reinstated the state’s ban on abortion after six weeks of pregnancy, which abruptly ended access to having abortions at later stages of pregnancy, access that had resumed only a few days earlier.

The justices put a lower court ruling that overturned the ban on hold in a one-page order while the court considered an appeal. Doctors who had just resumed performing abortions after six weeks gestation had to stop immediately. 

Advocates for abortion blasted the decision, saying it will traumatize women who will now have to arrange travel to other states to keep their pregnancies or for an abortion. According to the American Civil Liberties Union of Georgia, women waiting for abortions in providers’ offices were turned away. The American Civil Liberties Union represents abortion providers who are challenging the ban. 

“It is outrageous that this extreme law is back in effect, just days after being rightfully blocked,” said an attorney with the Center for Reproductive Rights, Alice Wang, also representing plaintiffs in the case. “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.”

According to a court filing by the state attorney general’s office, “untold numbers of unborn children” could “suffer the permanent consequences” if the state Supreme Court didn’t issue a stay to halt the November 15 decision by Robert McBurney, Fulton County Superior Court Judge.

Justice McBurney ruled that the state’s ban on abortion was invalid because a U.S. Supreme Court 2019 precedent was established by Roe v. Wade, and another ruling, had permitted abortions past six weeks gestation. 

The decision immediately blocked enforcement of the statewide abortion ban. The state appealed and asked the Georgia Supreme Court to halt the decision while the appeal moved forward. Abortions past six weeks had resumed at some providers, while some said they would proceed cautiously due to concerns that the ban could be quickly reinstated. 

The first ban in Georgia took effect in July following the U.S. Supreme Court’s overturn of Roe v. Wade. Most abortions would be prohibited once a “detectable human heartbeat” is detected. Ultrasound can detect cardiac activity in cells within an embryo that becomes the heart around the sixth week of pregnancy. 

Measure was passed by legislature, signed by the Governor

The measure passed the state Legislature and was signed into law by GOP Governor Brian Kemp in 2019. McBurney, in his ruling, said the timing made the law immediately invalid. It was passed before the U.S. Supreme Court ruled to overturn Roe v. Wade. 

McBurney wrote that legislatures exceeded their authority when they enacted laws that violated constitutional rights declared by the judicial branch of government. Judge McBurney wrote that the state legislature would have to pass the law again to have it enacted. 

In a filing with the Georgia Supreme Court, the state attorney general’s office blasted Judge McBurney’s reasoning as having “no basis in law, precedent, or common sense.”

The attorneys for the plaintiffs defended it in a reply and issued warnings of “irreparable harm” to women if it were put on hold. Plaintiffs had also asked the high court for a 24-hour notice before issuing a stay to “avoid the potential chaos” of resuming the ban while women were waiting for or receiving one. 

Before issuing the order, the state Supreme Court didn’t conduct a hearing, and the plaintiffs’ attorneys said its request for 24 hours’ notice was denied. The high court order said seven of the nine justices agreed with the decision. It also said one didn’t participate, and one was disqualified.