Georgia officials asked a court on Friday to immediately block a judge's ruling striking down the state's abortion ban. The ruling allowed the procedure to again be performed beyond about six weeks of pregnancy.
Fulton County Superior Court Judge Robert McBurney's decision earlier this week was “remarkable” and relied on a “wholly unsupported theory that has no basis in law, precedent, or common sense,” the state attorney general's office said in court documents filed with the Georgia Supreme Court.
It asked the high court for an order immediately putting McBurney's decision on hold while the justices take more time to consider an appeal. Such an order would restore the state's ban on abortion, which started roughly six weeks into pregnancy.
“This Court should stay the lower court’s decision now, without waiting to overrule it months down the line, while untold numbers of unborn children suffer the permanent consequences,” Georgia Solicitor General Stephen Petrany wrote.
The American Civil Liberties Union of Georgia, which represented doctors and advocacy groups that asked McBurney to throw out the law, said the judge's ruling was correct and should stand. It also noted that abortion providers resumed performing the procedure past six weeks following his ruling.
“Appropriate reproductive health care has restarted in this state, and it should continue — with Georgia's women and their partners being free to make private decisions about when and whether to have a family, without politicians,” ACLU of Georgia Executive Director Andrea Young said in a statement.
McBurney ruled Tuesday that the state’s abortion ban was invalid because when it was signed into law in 2019, U.S. Supreme Court precedent under Roe. v. Wade and another ruling allowed abortion well past six weeks. Legislatures exceed their authority when they enact laws that violate a constitutional right declared by the judicial branch, he wrote, adding that such laws are void when they are passed.
The decision immediately prohibited enforcement of the abortion ban statewide. It had been in effect since July and prohibited most abortions once a “detectable human heartbeat” was present.
Cardiac activity can be detected by ultrasound in cells within an embryo that will eventually become the heart around six weeks into a pregnancy. That means most abortions in Georgia were effectively banned at a point before many people knew they were pregnant.
In his court filing, Petrany noted that Georgia's ban went into effect after the U.S. Supreme Court in June overturned Roe v. Wade. When judicial precedents are overruled, they were never the law, he wrote.
“No other court has ever held that an overruled judicial opinion can, like a zombie rising from the grave, invalidate otherwise perfectly valid laws,” he claimed.
