ATLANTA (AP) – Georgia’s highest court is considering whether the state’s restrictive abortion law is invalid because it violates U.S. Supreme Court precedent that was in effect at the time it was passed.
A junior judge ruled last year that the 2019 law was not valid because at the time it was “clearly unconstitutional” for governments to ban abortions before they are feasible, based on U.S. Supreme Court precedent in the Roe case v. Wade and another judgement. Therefore, he wrote, the measure had not become law as of its enactment date and could not become law even after the US Supreme Court overturned that precedent last year.
His decision came amid a lawsuit filed by the American Civil Liberties Union, Planned Parenthood and the Center for Reproductive Rights on behalf of Georgia doctors and advocacy groups who had challenged the law.
During Tuesday’s hearing in the Georgia Supreme Court on Georgia’s appeal against the lower court’s ruling, Attorney General Stephen Petrany noted that the US Supreme Court ruled last year that Roe v. Wade is a misinterpretation of the US Constitution.
Because Georgia’s abortion law “would be valid if enacted today under the same federal constitution it was valid when it was enacted,” he argued.
Although the state Supreme Court disagrees, Petrany argued, the US Supreme Court has made it very clear “that its decisions must apply retrospectively, that lower and state courts cannot simply dismiss the application of its decisions.”
Julia Stone, an attorney for doctors and advocacy groups, contended that the lower court judge was right that the Georgia Constitution states that a law can never be valid if it is unconstitutional at the time it is passed. The Georgia Supreme Court has repeatedly stated that the General Assembly “is presumed to have knowledge of the law, including the judicial interpretation of that law,” she said.
“This is not a case where there was a gray area in 2019,” Stone said. “This was a case that had 50 years of Supreme Court precedent.”
The Georgia Supreme Court justices asked attorneys from both sides technical questions about their own arguments and those of the other side.
Georgia’s abortion measure was signed into law by Gov. Brian Kemp in 2019 and went into effect in July after the US Supreme Court ruled Roe v. Wade had picked up. It bans most abortions once there is a “detectable human heartbeat.”
About six weeks into pregnancy, heart activity can be detected by ultrasound in the cells of an embryo that will eventually become the heart. This means that the law bans most abortions in Georgia before many people even know they are pregnant.
The law provides exceptions for rape and incest, provided a police report is filed, and allows later abortions when the mother’s life is in danger or a serious health condition makes the fetus unviable.
Fulton County Superior Court Justice Robert McBurney ruled in November that Georgia’s abortion law was invalid because the U.S. Supreme Court’s precedent at the time it was signed allowed abortions well beyond six weeks.
His ruling immediately halted nationwide enforcement of the law and allowed abortions to resume beyond the limit set by the law. But the Georgia Supreme Court granted a state motion to stay McBurney’s sentence pending appeals, again halting most abortions about six weeks into a pregnancy.
