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Despite Temporary ‘Sigh of Relief,’ State Supreme Court Upholds Abortion Law

Georgia’s six-week ban will remain in effect after it was ruled unconstitutional by a Fulton Superior Court judge.

Protestors in Atlanta march in July in opposition to Georgia's abortion law that banned abortion after six weeks of pregnancy. (Megan Varner/Getty Images)

The state’s highest court just ruled to keep Georgia’s six-week abortion ban in place, ending a short-lived victory for abortion rights advocates. 

Last Tuesday, a Fulton County Superior Judge ruled the law, HB481, passed in 2019 unconstitutional since it was passed while Roe v. Wade was still in effect. Robert McBurney, the judge in the case, said that laws that violate the constitution at any point in time are forever void. 

This week, the Georgia Supreme Court ruled to temporarily keep the law in place.

“Relying on overruled judicial decisions to enjoin the LIFE Act is a wholly unsupported theory that has no basis in law, precedent, or common sense,” the state attorney general’s office said in a filing to the Georgia Supreme Court. “And because the superior court’s injunction causes the state irreparable harm every moment it stands, this Court should stay the injunction while it considers the issue on appeal.”

Reproductive rights advocates have staunchly opposed the bill, and the latest lawsuit, SisterSong Women of Color v. Kemp, argued that the law violated the state’s constitution. We explain the developments that happened before the state Supreme Court’s ruling and what the implications are for Black patients in Georgia. 

What was the law? 

House Bill 481 banned abortions once fetal cardiac activity is detected, which is typically around the six weeks — before most realize they’re pregnant. Previously the number was 22 weeks. Georgia does allow exceptions in the cases of incest and rape, but a police report must be filed. The law also gave the fetus “personhood,” and even gave pregnant people the ability to claim taxes on an unborn fetus. 

In 2020, a federal court blocked the law in response to a lawsuit filed against Kemp by abortion providers and advocacy groups, including the SisterSong Women of Color Reproductive Justice Collective, Planned Parenthood, and the American Civil Liberties Union of Georgia.

Two years later, the U.S. Supreme Court ruled to overturn Roe v. Wade, its landmark decision that gave women the constitutional right to choose abortion. In October, the 11th Circuit Court of Appeals ruled the state was allowed to enforce HB 481 following the Supreme Court ruling.

What was the ruling prior to the Supreme Court’s decision?

Fulton County Superior Court Judge Robert McBurney’s ruling was thought to have effectively ended the state’s six-week ban, reverting to the previous 22-week timeframe. Because HB481 was passed before Roe. V Wade was overturned, it cannot be enforced as a law. 

“At that time —  the spring of 2019 — everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability,” McBurney wrote. 

A footnote from the ruling addressed McBurney’s thinking in his decision and the overall impact on reproductive rights nationwide. 

“More Justices today believe that the U.S. Constitution does not protect a woman’s right to choose what to do with her body than it did in that same institution 50 years ago. This new majority has provided our nation with a revised (and controlling) interpretation of what the unchanged words of the U.S. Constitution really mean. And until that interpretation changes again, it is the law.”

How was McBurney’s ruling viewed?

State Sen. Jen Jordan, who tried to draw attention to the law’s unconstitutionality after it was initially passed, quipped that  “timing can be a bitch,” before calling McBurney’s ruling a “real win” for women in the state.

Is that true for all women?

Black women involved with the groups who were at the forefront of the fight against HB 481 are rejoicing, calling Tuesday’s ruling a victory. 

“For us to have this type of ruling come down from this judge, I think that it really does send a message that this was a win for Black folks in terms of us being able to make our own decisions about our bodies, and our family creation in the state, and our futures,” said Monica Simpson, the director of Sister Song Women of Color, the lead plaintiff in the lawsuit.

“Today’s ruling is a sigh of relief for Georgians who have suffered the severe consequences of Gov. Kemp’s ban on abortion from the earliest weeks of pregnancy, which is causing particular harm among Black and low-income communities,” said Julia Kaye, staff attorney with the ACLU’s Reproductive Freedom Project, in a statement.

How will the ruling affect Black patients statewide? 

Black women disproportionately seek out abortions in Georgia, research shows. Black people receive 65% of abortions in Georgia, despite being a third of the population.

According to a study from Emory University, abortions for Black people in the state increased 16 percentage points between 1994 and 2016 — from 52.7% to 68.9%. 

“This restriction or denying of access only creates more problems, just like this data is showing us,” Simpson said. “We already know that maternal mortality is the issue in this country because we have yet to address the root causes of all of these issues, which is white supremacy, patriarchy, and all of those things that make it difficult for people to be able to live healthy lives.”

How were state and local leaders responding before the Supreme Court’s decision?

Kemp’s office released a statement, condemning McBurney’s ruling. 

“Today’s ruling places the personal beliefs of a judge over the will of the legislature and people of Georgia,” the governor said in a statement. “The state has already filed a notice of appeal, and we will continue to fight for the lives of Georgia’s unborn children.”

After Roe v. Wade was overturned, Atlanta District 5 council member Liliana Bakhtiari introduced a resolution that was approved by the City Council to donate $300,000 to Access for Reproductive Care Southeast — an organization providing financial and educational resources for women seeking abortions.

In light of Tuesday’s ruling, Bakhtiari took to Twitter to share her elation, calling the move, “huge news for women and people capable of pregnancy here in Georgia!”

What has been the response to the Supreme Court ruling?

Local abortion rights advocates are not satisfied with the ruling, and have said they are now being forced to turn patients away for reproductive care. 

“It is cruel that our patients’ ability to access the reproductive health care they need has been taken away yet again. For the second time this year, we are being forced to turn away those in need of abortion care beyond six weeks of pregnancy,” said Kwajelyn Jackson, executive director of Feminist Women’s Health Center, which is one of the plaintiffs in the suit. “This ban has wreaked havoc on Georgians’ lives, and our patients deserve better. We will keep fighting to protect our patients and their health.”

The ACLU has said that if the law is put back into place, they will continue to challenge it, and Monica Simpson, the director of SisterSong Women of Color, the lead plaintiff in the lawsuit, agrees. 

“The governor and attorney general of Georgia are doubling down to control access to reproductive health care, and while the stay was granted, we will not stop fighting until this ban that is steeped in white supremacy is gone,” Simpson said in a statement. “All Georgians — including Black women and Queer, trans, low-income, and rural people — should have the freedom to decide to have children, to not have children, and to raise the families they have in thriving communities. We remain undeterred from realizing this vision.”

What could happen next?

Representatives for the plaintiffs in the case said the court denied their request for a 24-hour notice, which means the ban is effective immediately. 

McBurney said if his ruling was struck down, he will then rule on whether the law violates Georgia’s constitution on privacy matters. If that happens, he said there’s no need for a second trial since the matter was already debated in court. 

The General Assembly could pass the same ban when it meets again in January because now — in light of the Roe v. Wade ruling — it’s technically constitutional. However, Jordan and others have noted that Republicans in the assembly might have a hard time, thanks to a boost in Democrats in the state house.

The ACLU says if HB 481 is put back into effect or a new law is passed, it plans to legally challenge it. 

This story has been updated to reflect the Georgia Supreme Court’s decision to keep the six-week abortion ban in place.