Fulton County judge stops enforcement of Georgia’s abortion ban

Fed judges had previously allowed it to take effect
Protesters participating in a student-led, nonpartisan demonstration supporting reproductive freedoms listen to the speakers at  Alpharetta City Hall on Saturday, July 2, 2022. (Photo: Steve Schaefer / steve.schaefer@ajc.com)

Credit: Steve Schaefer

Credit: Steve Schaefer

Protesters participating in a student-led, nonpartisan demonstration supporting reproductive freedoms listen to the speakers at Alpharetta City Hall on Saturday, July 2, 2022. (Photo: Steve Schaefer / steve.schaefer@ajc.com)

The state can no longer enforce its ban on abortion that took effect earlier this year, a Fulton County judge said Tuesday, allowing the procedure again to be performed in Georgia after a doctor detects fetal cardiac activity.

Fulton County Superior Judge Robert McBurney issued an order Tuesday that said abortions must be regulated as they were before Georgia’s 2019 law took effect in July — meaning the procedure is again allowed up until about 22 weeks of pregnancy. A spokeswoman for the Georgia attorney general’s office said the state on Tuesday filed an appeal with the state Supreme Court.

Attorneys for abortion rights activists and providers last month argued that when the law passed in 2019, Roe v. Wade was the law of the land and state law does not allow the Legislature to enact statutes that violate the law. McBurney agreed.

“This ruling is merely a reinforcement of what ought to be for everyone the uncontroversial notion that, if the judicial branch has declared a constitutional right, legislatures exceed their authority, improperly expand their role and fundamentally alter the balance struck by the separation of powers when they enact laws they know to be plainly and facially unconstitutional,” McBurney wrote. “Those laws are void upon passage.”

State lawyers had contended the law should remain in effect because “abortion always harms a third party,” the embryo or fetus. McBurney also denied a motion from the state’s attorneys to dismiss the lawsuit.

McBurney struck down sections of the 2019 law that limited when abortions could be performed and changed the reporting requirements for providers. Other portions of the law, such as allowing parents to claim a zygote or fetus as a dependent on their taxes or counting zygotes or fetuses in the state’s population, will remain on the books.

Liz Edmonds, leadership director with the Georgia Life Alliance, called the fact that the bulk of the 2019 law will remain in effect an “interesting and exciting” win for anti-abortion activists.

Feminist Women’s Health Center Director Kwajelyn Jackson, whose group was among those who filed the lawsuit, said her facility is looking forward to again performing later abortions for Georgians who are seeking them.

“We are relieved to hear the judge’s decision and are hopeful about our ability to provide compassionate abortion care for Georgians in a manner that they deserve,” she said.

Melissa Grant, chief operating officer and co-founder of Carafem, which operates abortion clinics in Atlanta and three other states, said the court ruling made her “cautiously optimistic.” She said Carafem’s Atlanta clinic had turned away hundreds of patients who were too far along for abortions under Georgia’s 2019 law.

Now that the law has been struck down, the clinic is trying to determine what testing it might still need to do or if there is any new requirement for the maximum gestational age, she said.

“It’s just gone through,” she said. “We’re very aware that these things, politically, can be short-lived.”

In potentially expanding services, Carafem is also trying to avoid a repeat of what happened in July, when the law took effect without warning and patients suddenly had to leave waiting rooms.

“We could have people further into their pregnancies coming and suddenly the law changes again,” Grant said. “We’ll keep our fingers crossed and see what happens.”

A ruling by the 11th U.S. Circuit Court of Appeals in July allowed Georgia’s 2019 abortion law to be enforced, stopping most abortions once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many know they are pregnant.

The June decision in Dobbs v. Jackson Women’s Health Organization by the U.S. Supreme Court overturned Roe v. Wade, the 1973 ruling that guaranteed a nationwide right to abortion until a fetus is viable to live on its own, paving the way for Georgia’s law to take effect.

Now that Roe v. Wade no longer serves as a guide for abortion laws, McBurney said, the Georgia General Assembly can reintroduce and work to pass a version of the 2019 law.

“Our state legislators are now, under Dobbs, free to move away from a post-viability ban in an effort to strike a different balance between the interests of fetal life and women’s bodily autonomy, should they conclude that that is what is best for Georgians,” McBurney wrote.

It’s unclear whether another attempt would pass the current makeup of the Legislature. The law narrowly passed the House in 2019, with a handful of Republicans voting against it, and the chamber’s GOP caucus has shrunk since then.

Edmonds, whose Georgia Life Alliance was involved with writing the 2019 law, said she doesn’t expect lawmakers to file similar legislation next year.

“Until we get a decision from the Georgia Supreme Court, coming back and trying to pass another abortion restriction — I don’t think anybody’s going to do that because it would create more confusion,” she said.

Doctors and leaders of area clinics said the volume of abortions performed in Georgia dropped precipitously after the 2019 abortion law took effect, but no clinics have closed or ceased providing the procedure since then, according to websites, phone inquiries and a study by the Guttmacher Institute, a New York-based nonprofit research organization that supports abortion rights.

Many Georgians sought abortions in other states.

As of last month, the nonprofit Access Reproductive Care-Southeast had provided financial assistance to about 450 Georgia abortion patients since the U.S. Supreme Court decision, one-third of whom traveled out of state for care, the organization said. Of those traveling to another state, 77% went to North Carolina, in part because Florida requires patients to receive counseling in person at least 24 hours before an abortion, said Allison Coffman, who serves on ARC-Southeast’s board.

Some patients with fetal abnormalities or medical conditions went to Virginia Commonwealth University’s hospital in Richmond if they were unlikely to qualify for abortions in Georgia, Coffman said. North Carolina bans abortions at 20 weeks, and Virginia bans them at 27 weeks.

During a two-day trial last month, experts for the state said having an abortion had a greater negative effect on the mental and physical health of the mother than having an unwanted child. Experts testifying on behalf of abortion rights advocates said carrying an unwanted pregnancy to term has more of a negative effect on a patient’s mental and physical health.

McBurney denied an August request from abortion providers asking him to stop enforcement of the law while the case was ongoing.

The state had unsuccessfully tried to “cancel or delay” last month’s trial, saying, among other things, that it was too close to the Nov. 8 election. Abortion has been a hot topic on the campaign trail this year.

McBurney noted that he did not rule on the constitutionality of the law, but the fact that it was passed at a time when it was illegal to do so.

Staff writer Alia Malik contributed to this article.

Read the ruling: