A judge lifted the strict ban on abortion in Georgia. What now?

A Fulton County judge ruled Tuesday to overturn Georgia’s recently introduced abortion ban and restore the state’s abortion restrictions to previous schedules.

Superior Court Judge Robert McBurney sided with the plaintiffs in a constitutional challenge to the law, filed shortly after the ban went into effect.

House Bill 481 – passed by the legislature in 2019 – was embroiled in litigation for nearly three years. That changed when the Supreme Court overturned Roe v. calf in June, which paved the way for its implementation.

The law bans almost all abortions when “fetal heart activity” is detected — usually around the sixth week of pregnancy. When the ban went into effect in July, abortion medicine providers struggled to accommodate patients and had to turn away many.

Plaintiffs in the latest lawsuit alleged that the ban violated the strict right to privacy under the Georgian constitution and ever since Roe v. calf was the law of the country when it was passed in 2019, it is void.

In Georgia, statutes enacted that violate the state or federal constitution at the time of their enactment are “void from the beginning.

McBurney agreed with that precedent, stating in his 15-page judgment that prior to the Supreme Court’s decision this summer, “laws unduly restricting prefeasibility abortion were unconstitutional.”

“At that time — in the spring of 2019 — it was clearly unconstitutional throughout America, including Georgia, for governments — at the federal, state, or local level — to ban abortion prior to feasibility,” he wrote.

McBurney’s decision did not consider the law unconstitutional and led to a possible fight in the next session of the state legislature if lawmakers decide to revive the law.

“It may someday become Georgia law,” he wrote. “But only after our legislature has determined, in the sharp light of the public attention that will no doubt and properly participate in so important and momentous a debate, whether the rights of unborn children justify such a limitation of women’s right to bodily autonomy and privacy.”

For now, abortion restrictions in Georgia will be rolled back to previous ones, making abortions legal again up to 22 weeks of pregnancy.

But the legal battle surrounding the verdict is far from over. Attorney General Chris Carr quickly appealed to the Georgia Supreme Court.

“We have appealed and will continue to fulfill our duty to defend our state’s laws in court,” said Kara Richardson, spokeswoman for the attorney general.

Another battle is brewing

Abortion providers and advocates who have joined the case hailed the judge’s decision on Tuesday.

“After a long road, we can finally celebrate the end of an extreme abortion ban in our state,” said Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, the lead plaintiff in the case.

“While we welcome the end of white supremacy-permeated prohibition,” she said, “it shouldn’t have existed in the first place.” Now is the time to move forward with a vision for Georgia that creates full physical autonomy and liberation for our communities.”

Planned Parenthood Southeast vice president of foreign affairs Amy Kennedy said Planned Parenthood clinics in Georgia stop turning people away for abortions after six weeks.

“We’ve been inundated with phone calls for about 30 minutes after the verdict was reached yesterday,” Kennedy said. Most of these calls come from patients.

But we know the fight isn’t over yet. We know the Georgia legislature could come back as early as January and issue another ban, a stronger ban with more exclusions,” Kennedy said. “And we’re gearing up for what that fight might look like next spring.”

Recently re-elected Republican Gov. Brian Kemp lobbied and pushed for passage of HB 481 during his first year in office.

“Today’s verdict places a judge’s personal beliefs above the will of the legislature and the people of Georgia,” said Andrew Isenhour, spokesman for the governor, in a statement. “The state has already appealed, and we will continue to fight for the lives of Georgia’s unborn children.”

Both the Georgia House and Senate have new leadership in this upcoming session. Rep. Jon Burns was nominated to be Speaker of the House on Monday and Senator Burt Jones is the new Lieutenant Governor elected to office last week.

The so-called “Heartbeat Bill” was passed by Parliament in 2019 with just one vote. Three years later, a narrower majority for Republicans could start a contentious battle during the session that begins in January.

State Senator Jen Jordan, who lost her bid for Attorney General to incumbent Republican Chris Carr, sent a letter to the state in 2019 after the passage of HB 481, making the same argument that the law was void.

“Of course (the) General Assembly can now pass (the) same ban in January and it would be considered constitutional because Dobbs would control,” she said on social media. “My guess is that they would (a) have a really hard time doing this. Dems only upped their numbers at the GA House and barely made it last time.

Charles Bullock, a political science professor at the University of Georgia, theorized that in 2019 lawmakers had a chance to avoid the challenge in the first place.

On GPB’s Political reviewBullock said if lawmakers had included a trigger law provision in the bill — that would have made the ban go into effect immediately if Roe v. calf was set aside – plaintiff’s argument would not stand.

Those laws said, “Here’s what will happen when Roe v. calf knocked over,’” he said. “But Georgia didn’t adopt that. If this law had been written like that, then there would be no problem because it would only come into effect after something happened in the Supreme Court.”

GPB reporter Sofi Gratas contributed to this report.

This story comes to Reporter Newspapers / Atlanta Intown through a reporting partnership with GPB News, a nonprofit newsroom for the state of Georgia.

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