ATLANTA — Attorneys representing Gov. Brian Kemp on Friday asked the Georgia Supreme Court to reverse a Superior Court ruling released earlier this week that blocked enforcement of the state’s anti-abortion law.
Fulton Superior Court Judge Robert McBurney on Tuesday ordered the state to no longer enforce the 2019 law, which banned most abortions once fetal cardiac activity could be detected, typically at about six weeks into a pregnancy and before many know they are pregnant. The law had been in effect in Georgia since July.
McBurney’s order said abortions must be regulated as they were before Georgia’s 2019 law took effect — meaning the procedure is again allowed up until about 22 weeks of pregnancy.
Attorneys for the state told the Supreme Court that it is in the public interest not only to overturn McBurney’s ruling, but to block it while the court considers the case.
“The harm to the state is significant and irreparable,” attorneys wrote in the appeal filed with the court. “Unborn children are at risk every day that the injunction continues.”
Clinics across metro Atlanta this week began performing abortions that occur after the detection of fetal cardiac activity and up to about 22 weeks of pregnancy. Providers said patients were anxious the law could change again with another court decision.
It’s unclear how soon the Supreme Court will make a decision on whether to block McBurney’s ruling, which would put the 2019 law back into effect.
Attorneys representing abortion rights activists and providers, last month argued that when the law passed in 2019, Roe v. Wade — the 1973 U.S. Supreme Court ruling that guaranteed a right to an abortion until a fetus was viable outside the mother’s body — was the law of the land and state law does not allow the Legislature to enact statutes that violate the law.
A ruling by the 11th U.S. Circuit Court of Appeals in July allowed Georgia’s 2019 abortion law to be enforced. The U.S. Supreme Court’s June decision to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization paved the way for Georgia’s law to take effect.
McBurney said that just because the Dobbs decision overturned the nearly 50-year-old Roe decision, it did not retroactively make the 2019 passage of Georgia’s abortion law legal.
“Sadly, Gov. Kemp and Attorney General (Chris) Carr are doubling down to deny women’s access to reproductive health care,” said Andrea Young, executive director of the American Civil Liberties Union of Georgia, which represented plaintiffs in the case. “Judge McBurney’s ruling is legally correct, and it should remain in place.
“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,” Young said.
In their appeal, attorneys for the state said it doesn’t matter whether the law was not constitutional when it passed the General Assembly in 2019, it is now in line with the law as established by the Dobbs decision.
“The Superior Court fundamentally misunderstood the role of courts, which merely interpret law in the course of issuing judgments in individual cases,” attorneys wrote in the appeal. “Courts do not amend the constitution, and the constitution does not change simply because a court’s view of it changes.”
McBurney on Tuesday struck down sections of the 2019 law that limited when abortions could be performed and changed the reporting requirements for providers. Other portions of the law, such as allowing parents to claim a zygote or fetus as a dependent on their taxes or counting zygotes or fetuses in the state’s population, will remain on the books.
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