Georgia Supreme Court justices listen to arguments in a case over whether the state’s six-week abortion ban should be considered void from the start since it was passed before Roe v. Wade was overturned. Jill Nolin/Georgia Recorder (file photo)
Will the Georgia Supreme Court agree with a lower court’s ruling that said the state’s six-week abortion ban should be tossed out since it was passed in 2019 when Roe v. Wade was still the reigning five-decade-old court precedent?
The answer is set to be revealed at 9 a.m. Tuesday and posted online.
The state’s highest court heard oral arguments in late March on what amounts to a narrow legal issue. At the time, the justices seemed skeptical of the argument that the law is invalid because of when it was passed, but attorneys for the plaintiffs cautioned against reading too much into the kinds of questions being asked in court.
The argument was strong enough to persuade Fulton County Superior Court Judge Robert C. I. McBurney to call the new abortion restrictions “plainly unconstitutional” last November since they were created before the U.S. Supreme Court’s 2022 ruling in the Dobbs v. Jackson Women’s Health Organization case.
The state law bans most abortions after fetal cardiac activity is detected, which is usually at about six weeks and before many women know they are pregnant. McBurney’s ruling also threw out a requirement that physicians report to the state Department of Public Health when an abortion qualified under the state’s narrow exceptions, such as in the case of rape if a police report has been filed.
McBurney sided with the group of health care providers and abortion rights advocates challenging the law who argued state lawmakers should be ordered to attempt a do-over now that Roe v. Wade has been overturned. The law narrowly cleared the House when it was passed in 2019.
“Under Dobbs, it may someday become the law of Georgia, but only after our Legislature determines in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate whether the rights of unborn children justify such a restriction on women’s right to bodily autonomy and privacy,” McBurney wrote in his 2022 ruling.
McBurney’s decision was issued last November following a two-day trial in downtown Atlanta, briefly blocking the six-week ban that had been in effect since July. The state Supreme Court then quickly restored the ban while the case percolated through the courts.
Even if the state Supreme Court disagrees with McBurney’s ruling, one thing is for certain about Tuesday’s expected opinion: It won’t be the last word on Georgia’s 2019 abortion restrictions. The lawsuit filed in Fulton County Superior Court also argues that Georgia’s law violates the state constitution’s right to privacy.
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