Judge could soon decide temporary fate of new Georgia abortion law

Credit: arvin.temkar@ajc.com

Credit: arvin.temkar@ajc.com

A Fulton County Superior Court judge on Monday heard arguments on whether the Georgia Constitution’s right to privacy should stop the state’s new abortion law from being enforced.

Fulton County Superior Court Judge Robert McBurney listened to about two hours of arguments from attorneys representing the state and those challenging the law, saying he would make decision about whether to temporarily stop enforcement of the law while the case makes its way through the legal process.

“I understand that this is something that needs immediate attention,” McBurney said. “This is an important issue that has been rippling across the country and we need to deal with how Georgia — or at least one little judge in Fulton County — is going to deal with it, initially, and you all are going to take it to bigger and better places once I’ve had my say.”

A ruling from the 11th U.S. Circuit Court of Appeals last month allowed Georgia’s 2019 abortion law to be enforced. That means most abortions are no longer allowed once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many women know they are pregnant.

The SisterSong Women of Color Reproductive Justice Collective and other abortion rights groups and providers sued Georgia in 2019 after the Legislature passed the law. Many of those same groups are now suing in Fulton County Superior Court citing the state’s constitution, which some legal experts have said grants more expansive rights to privacy than the U.S. Constitution.

The June U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization overturned the nearly 50-year-old Roe v. Wade decision that guaranteed a constitutional right to abortion and cleared the way for Georgia’s law to take effect.

Attorneys from the American Civil Liberties Union, representing abortion rights advocates and providers, said the new law was illegally enacted. Attorneys argued that when the law passed in 2019, Roe v. Wade was the law of the land and the law does not allow the Legislature to enact statutes that violate the law.

“From the moment the Legislature enacted this law, it was void,” said Julia Kaye, an attorney with the ACLU Reproductive Freedom Project. “The legislature is free to re-enact it, but Dobbs does not automatically bring this law back to life like a zombie.”

McBurney asked Solicitor General Stephen Petrany, representing the state, why state lawmakers should be able to “pass any law we want because, by golly, we’re the Legislature,” even if it contradicts existing law.

“What you’re describing sounds like democracy,” Petrany said. Elected officials “can continue testing the judiciary,” he added.

Georgia’s new law is different from other states’ “heartbeat” statutes because it includes so-called personhood provisions, extending rights to an embryo once fetal cardiac activity can be detected. Parents would be able to claim a fetus, once a heartbeat is detected, on their state income taxes as a dependent, and the measure would also require state officials to count an unborn child toward Georgia’s population. Mothers can also file for child support once cardiac activity is detected.