Superior court judge declines to immediately block Georgia’s abortion ban

The state’s six-week abortion ban will remain in affect while a judge hears arguments that the law violates the state constitutional right to privacy.

Health care providers and advocates who filed the constitutional challenge had asked Fulton County Superior Court Judge Robert C.I. McBurney to block the law while their legal challenge was being resolved.

Georgia’s new abortion restrictions suddenly took effect last month following a ruling from 11th Circuit Court of Appeals, which cited the U.S. Supreme Court’s decision to overturn Roe v. Wade in June.

A new legal challenge was quickly filed in state court last month, and the plaintiffs asked the judge to suspend the law while the case is being heard. But McBurney ruled against them Monday, saying the state had not “waived sovereign immunity for claims for preliminary injunctive relief from aggrieved parties challenging the constitutionality of an act of our State’s Legislature.”

“Put more plainly, the Court is dismissing the motion not on its merits but because the Court lacks jurisdiction to consider its merits,” McBurney wrote in his decision.

At issue is a constitutional amendment that passed in 2020 – partly spurred by a prior challenge of Georgia’s abortion law – that allowed Georgians to file a lawsuit asking a judge to issue a declaratory judgment on whether the state or a local government has violated a particular law.

McBurney concluded that the change did not extend to preliminary injunctive relief, which in this instance would have allowed the judge to temporarily block the state’s abortion law while the broader challenge is being heard.

“To repeat, the Court is making no finding on the merits of this important litigation. The question of whether it is constitutional for the State to force a woman to carry to term a six-week-old embryo against her wishes, even in the face of serious medical risk, remains to be answered. Until it is, however, the LIFE Act remains in effect,” McBurney wrote.

The ACLU of Georgia, which is representing the plaintiffs, called the judge’s decision a technical ruling and a narrow interpretation of the constitutional amendment.

“The court’s decision today declining to block the abortion ban is extremely disappointing and leaves in place a law that severely compromises the quality of women’s healthcare in the state of Georgia,” Andrea Young, executive director of ACLU of Georgia, said in a statement.

The decision means Georgia’s law stays in effect. The measure bans most abortions once fetal cardiac activity is detected, which is usually about six into a pregnancy and before many women know they are pregnant. The law also includes so-called personhood language, such as a tax break for expecting parents, that state agencies are scrambling to implement.

“Georgians deserve better than this. It’s been less than a month and already we’ve had to turn away hundreds of patients since this ban took effect,” said Amy Kennedy, vice president of external affairs at Planned Parenthood Southeast. “Today’s ruling means that pregnant Georgians will continue to live in fear and uncertainty — unable to exercise control over their own lives and futures.”