ATLANTA — Georgia can no longer enforce its ban on abortion that took effect earlier this year, a Fulton County judge said Tuesday, allowing the procedure to be performed again in the state even if a doctor detects fetal cardiac activity.
Fulton County Superior Judge Robert McBurney issued an order Tuesday that said abortions must be regulated as they were before Georgia’s 2019 law took effect in July — meaning the procedure is again allowed up until about 22 weeks of pregnancy. The state will appeal the ruling.
Attorneys for the abortion rights activists and providers last month argued that when the law passed in 2019, Roe v. Wade was the law of the land and state law does not allow the Legislature to enact statutes that violate the law. McBurney agreed.
“This ruling is merely a reinforcement of what ought to be for everyone the uncontroversial notion that, if the judicial branch has declared a constitutional right, legislatures exceed their authority, improperly expand their role and fundamentally alter the balance struck by the separation of powers when they enact laws they know to be plainly and facially unconstitutional,” McBurney wrote. “Those laws are void upon passage.”
State lawyers had contended the law should remain in effect because “abortion always harms a third party,” the embryo or fetus. McBurney also denied a motion from the state’s attorneys to dismiss the lawsuit.
Feminist Women’s Health Center Director Kwajelyn Jackson, whose group was among those who filed the lawsuit, said the facility is looking forward to again performing abortions for Georgians who are seeking them.
“We are relieved to hear the judge’s decision and are hopeful about our ability to provide compassionate abortion care for Georgians in a manner that they deserve,” she said.
A ruling from the 11th U.S. Circuit Court of Appeals in July allowed Georgia’s 2019 abortion law to be enforced, stopping most abortions once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many know they are pregnant.
The June decision in Dobbs v. Jackson Women’s Health Organization by the U.S. Supreme Court overturned Roe v. Wade, the 1973 ruling that guaranteed a nationwide right to abortion, paving the way for Georgia’s law to take effect.
Now that Roe v. Wade is no longer the law of the land, McBurney said, the Georgia General Assembly can reintroduce and work to pass a version of the 2019 law.
“Our state legislators are now, under Dobbs, free to move away from a post-viability ban in an effort to strike a different balance between the interests of fetal life and women’s bodily autonomy, should they conclude that that is what is best for Georgians,” McBurney wrote.
McBurney struck down sections of the 2019 law that limited when abortions could be performed and changed the reporting requirements for providers.
During a two-day trial last month, experts testifying on behalf of abortion rights advocates said carrying an unwanted pregnancy to term has more of a negative effect on a patient’s mental and physical health. Experts for the state said having an abortion had a greater negative effect on the mental and physical health of the mother.
McBurney denied an August request from abortion providers asking him to stop enforcement of the law while the case was ongoing.
The state had unsuccessfully tried to “cancel or delay” this week’s trial, saying, among other things, that it was too close to the Nov. 8 election. Abortion was a hot topic on the campaign trail this fall.
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