Georgia Keeps Six-Week Abortion Ban But Orders Another Trial

Plaintiffs argued that the law was void because it was passed in 2019 when Roe v. Wade was still the law of the land.

Georgia Keeps Six-Week Abortion Ban But Orders Another Trial
Activists rally outside the State Capitol in support of abortion rights in Atlanta, Georgia in 2022. Photo:ELIJAH NOUVELAGE/AFP (Getty Images)

On Tuesday, the Georgia state Supreme Court allowed the state’s six-week abortion ban to remain in place while ordering yet another trial about the constitutionality of the law by a lower trial court.

Gov. Brian Kemp—the Republican governor who ran on anti-abortion policy positions—signed the law, called the LIFE Act, in 2019, which included the six-week abortion ban (a time period when most patients don’t yet realize they’re pregnant), expanded tax dependency status for fetuses, and expanded prosecutors’ access to medical records. Following an immediate legal challenge by an abortion rights coalition, which included the Atlanta abortion clinic Feminist Women’s Health Center, a federal court kept the law from taking effect until July 2022—about three weeks after the Supreme Court overturned Roe v. Wade. That month, a federal appeals court made the unusual decision of immediately instating the law, changing Georgia’s abortion limits from 22 weeks to 6 weeks in an instant.

About a week later, pro-abortion plaintiffs including abortion providers, clinics, and advocates, filed a new and separate case in state court, contending the law was null and void under the Georgia Constitution when it was first signed into law. In 2019, Roe was still the law, so the state legislature shouldn’t have been allowed to enact a six-week ban that year, let alone revive the legislation after the Dobbs decision, the plaintiffs argued. The case also argued that the state constitution has strong protections for individual privacy, including medical decisions like abortion.

Six of the state’s highest court justices disagreed, allowing the ban to remain in effect, with one justice dissenting. “The holdings of U.S. Supreme Court cases interpreting the U.S. Constitution that have since been overruled cannot establish that a law was unconstitutional when enacted,” Georgia Supreme Court Justice Verda Colvin wrote for the majority. (Colvin was appointed to the state’s highest bench by Gov. Kemp in 2021.) Justice John Ellington, the lone dissenter, wrote that the ban “was void when passed because its ban on most abortions after” six weeks “would unduly interfere with a woman’s then-protected right under the U.S. Constitution to terminate a pregnancy before viability.”

Now, the case is back to Fulton Superior Judge Robert McBurney, who had previously ordered the state to not enforce the law but had not ruled on its constitutionality. The Supreme Court now wants him to consider constitutional arguments. We don’t yet know if there will be updated arguments since he already sat through a two-day trial in October 2022. And if McBurney makes a ruling that anti-abortion policymakers don’t care for? It could go back to the state Supreme Court…again. Litigation could continue for years.

“I applaud Justice Colvin and the Georgia Supreme Court for ruling today that our written Constitution controls over judge-made law,” Kemp told The Atlanta Journal-Constitution. “Today’s victory represents one more step towards ending this litigation and ensuring the lives of Georgians at all ages are protected.”

Plaintiffs were gutted in a statement released to reporters on Tuesday. Kwajelyn Jackson, executive director of Feminist Women’s Health Center, said they still get calls from people across the region who need abortion care. “It is heart-wrenching that we are being forced to turn patients away who need abortion care beyond the earliest weeks of pregnancy,” Jackson said in a statement to Jezebel. “We have been continuing to get calls from patients across Georgia and the Southeast who have nowhere in their own communities to turn to for care. Abortion is an essential component of reproductive health care, and this law is putting people’s lives at risk.”

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