Judge rejects challenge to state’s ‘fetal pain’ abortion law

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Judge rejects challenge to state’s ‘fetal pain’ abortion law

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Janice McFarland (center) holds a pro life sign during the Georgia March for Life in Atlanta in January. Jonathan Phillips / For the AJC

For the past six months, it has been illegal in Georgia for doctors to perform abortions after 20 weeks of pregnancy, in most cases.

Except the standard had been 24 weeks, and hardly anyone knew about the change.

“It was unknown to the doctors we represent and unknown to virtually all the doctors in Georgia,” Atlanta attorney Don Samuel said Wednesday.

The extraordinary legal case began with passage of the so-called “fetal pain” law by the Georgia Legislature in 2012 that prohibited abortions after 20 weeks. Lawmakers said a fetus that has developed for 20 weeks is capable of feeling pain and asserted that the state has an interest in protecting it.

Three obstetricians, represented by the American Civil Liberties Union, challenged the law in court, arguing that a fetus is not viable — able to survive outside the mother’s body — at 20 weeks. For that reason, the doctors said, the state violates women’s right to privacy by restricting access to abortion of a “pre-viable” fetus.

Days before the new Georgia law was to take effect in January 2013, a Fulton County judge issued an injunction, putting the measure on hold.

In late October, however, a different Fulton County judge dismissed both the lawsuit and the injunction, which meant that doctors performing abortions after 20 weeks could be charged with a felony punishable by up to 10 years in prison.

It also meant that women seeking to terminate their pregnancies had about four fewer weeks to do so. In the landmark Roe v. Wade decision in 1973, the U.S. Supreme Court upheld a woman’s right to abortion until the time a fetus is viable, now considered to be about 24 weeks after conception.

During a court hearing on Wednesday, Samuel, one of the obstetricians’ lawyers, told Superior Court Judge Kimberly Esmond Adams that the plaintiffs never knew the judge had sided with the state six months ago because none of the attorneys received her order. For this reason, they missed the 30-day deadline to appeal Adams’ ruling, which they would have had every intention to do, he said.

Samuel asked Adams to vacate her order and then reenter it to give the plaintiffs a chance to appeal to the Georgia Supreme Court.

The state’s solicitor general, Britt Grant, said the Attorney General’s Office would not oppose that and also expressed confidence the appeal would fail. “We think your order was correct and we expect it will be upheld,” she said to Adams.

Adams said she was surprised she never received notice that the ACLU had appealed her order. She also said she could not understand why the plaintiffs never received it, but she took them at their word. She then agreed to re-issue the order to give them the opportunity to appeal.

The “fetal pain” law passed in the 2012 General Assembly requires any abortion performed after 20 weeks to be done in a way that brings the fetus out alive. Exceptions in the law include “medically futile pregnancies,” in which doctors have the option to perform an abortion past 20 weeks when a fetus has congenital or chromosomal defects.

A number of medical experts have taken exception to “fetal pain” legislation, saying there is no evidence that a fetus could experience pain before the third trimester — 27 to 28 weeks into a pregnancy. (A review in the Journal of the American Medical Association in 2005 came to that conclusion, and the American Congress of Obstetricians and Gynecologists affirmed it in 2013.)

Georgia is one of at least a dozen states with a “fetal pain” statute. Indeed, South Carolina Gov. Nikki Haley on Wednesday signed into law a fetal pain statute that prohibits abortions after 20 weeks there.

A few months after Gov. Nathan Deal signed Georgia’s bill into law in 2012, the ACLU filed its lawsuit. A few days before the law was to take effect on Jan. 1, 2013, a Fulton judge issued an injunction suspending its enforcement. That injunction had remained in effect until Adams dismissed the case on Oct. 30.

Gen Wilson, chapter director for Georgia Right to Life, said her group had been unaware until very recently that Adams had issued that ruling. “This is a mixed blessing for us,” she said. “Truly we are grateful for the lives the law will save. However, we deeply regret the Legislature added that exception for medically futile pregnancies.”

After Wednesday’s hearing, Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project, said the plaintiffs’ lawyers will soon ask Adams to enter a new injunction and allow it to remain in effect while the appeal is pending.

In her 11-page decision, Adams said the “sovereign immunity” doctrine shields state officials from this kind of litigation but noted she “did not arrive at this conclusion with haste or ease.”

“As evidenced by the continued debate throughout this nation, issues related to reproductive and abortion rights often involve competing interests, concerns and ideologies,” she wrote. “(T)he court is mindful of the grave issues raised by the above-styled case and troubled by the realities of this matter.”

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