ATLANTA — The Georgia Supreme Court on Wednesday reinstated the state’s ban on abortions after about six weeks of pregnancy, abruptly ending access to post-natal abortions that had resumed days earlier.
In a unilateral order, judges have put a lower court decision to overturn the ban on hold while they consider an appeal. Abortion providers who performed the procedure again after six weeks had to stop again.
Lawyers and advocates pushing for the ban to be lifted said the abrupt stop will traumatize women who now have to travel to other states to arrange for an abortion or keep their pregnancy.
“It is outrageous that this extreme law is back in effect just days after it was rightfully blocked,” said Alice Wang, a lawyer with the Center for Reproductive Rights who represented abortion providers challenging the ban in Georgia. “This legal ping-pong is causing havoc for medical providers trying to get their jobs done and for patients now desperate to get the abortion services they need.”
The attorney general’s office said in a court filing that “countless unborn children” would “suffer the lasting consequences” if the state Supreme Court did not issue a stay and overturn Fulton County Superior Court Judge Robert McBurney’s Nov. 15 decision.
McBurney ruled that the state’s ban on abortion was invalid because when he signed it in 2019, the Roe v. Wade-set US Supreme Court precedent and another ruling allowing abortions well beyond six weeks.
The decision immediately barred nationwide enforcement of the abortion ban. The state appealed, asking the Georgia Supreme Court to stay the decision while the appeal proceeds.
Although abortions have resumed in the past six weeks, some abortion providers said they were treading cautiously over concerns the ban could be quickly reinstated.
Georgia’s ban went into effect in July after the US Supreme Court ruled Roe v. Wade had picked up. It banned most abortions once a “detectable human heartbeat” was present.
Heart activity can be detected by ultrasound in cells within an embryo, which eventually become the heart about six weeks into pregnancy. This means that most abortions in Georgia were effectively banned at a time before many people knew they were pregnant.
The measure was passed by the state Legislature and signed into law by Republican Gov. Brian Kemp in 2019. In his decision, McBurney said that the timing – before the US Supreme Court Roe v. Wade repealed – immediately voided the law.
Legislatures exceed their powers when they enact laws that violate a constitutional right declared by the judiciary, he wrote.
To enact the law, the state legislature would have to re-enact it, he wrote.
The attorney general’s office blasted McBurney’s argument in a Georgia Supreme Court filing as “without legal basis, precedent, or common sense.”
The plaintiffs’ attorneys defended it in a response, warning of “irreparable harm” to women if it were suspended. They also asked the Supreme Court for 24-hour notice before issuing a stay to avoid “the potential chaos” of resuming the ban while women were awaiting or in the process of having an abortion.
The state Supreme Court did not hold a hearing before issuing its order, and plaintiffs’ attorneys said they denied their motion with 24 hours’ notice.
According to the High Court’s order, seven of the nine judges agreed with the decision. It said one had been disqualified and another had not participated.
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