The Georgia Supreme Court upholds the state’s six-week abortion ban, returning the challenge to the lower court

This story was updated on Tuesday, October 24, 2023 at 4:15 p.m.

Attention has shifted back to the Fulton County courthouse after the Georgia Supreme Court rejected an argument that state lawmakers should enact abortion restrictions in the post-Roe world.

A group of health care providers and abortion rights advocates had argued that parts of the 2019 law should be thrown out because they were passed before the U.S. Supreme Court upheld Roe v. Wade repealed in 2022, leaving the decision up to the states.

Fulton County Superior Court Judge Robert CI McBurney agreed and ruled Restrictions “clearly unconstitutional” when they were created.

But in a 6-1 ruling Tuesday, the state Supreme Court disagreed. The opinion resolves a narrow legal issue that was only part of the still-active legal challenge in Fulton County, which also argues that Georgia’s strict abortion restrictions violate the rights to privacy and equal protection enshrined in the state constitution.

McBurney held a two-day trial heard arguments and testimony last fall and has not yet ruled on other parts of the case.

State law bans most abortions after fetal heart activity is detected, which usually occurs after about six weeks and before many women realize they are pregnant.

The judgment that can be found HereHe was released Tuesday, nearly seven months after the trial heard oral presentations.

Writing for the majority, Judge Verda M. Colvin, appointed to the court in 2021 by Gov. Brian Kemp, said McBurney’s ruling was based on a “flawed premise.”

The U.S. Constitution, Colvin said, is the same text as it was when Gov. Brian Kemp signed the six-week ban in 2019. It is only the U.S. Supreme Court’s interpretation of the document that has changed, she said.

And Colvin said courts must now look to the U.S. Supreme Court’s 2022 decision, even though the law in question predates the decision, which upends a nearly 50-year-old precedent protecting abortion access presented.

“The Supreme Court of the United States gives no meaning to the independent and settled meaning of the Constitution of the United States and has no authority to amend it,” Colvin wrote.

“And we have no authority to override the United States Supreme Court’s interpretation of the Constitution of the United States now prevailing in determining whether the LIFE Act violated the Constitution at the time of its enactment “The dissenting opinion is wrong to suggest otherwise,” she added.

Georgia Supreme Court Justice John J. Ellington hears oral arguments in March. Jill Nolin/Georgia recorder

John J. Ellington, elected to the court in 2018, was the only dissenting justice. Two judges were not part of the opinion. Presiding Judge Nels SD Peterson was excluded from the proceedings and Judge Andrew A. Pinson did not participate.

“Obviously, the Dobbs decision did not mean that Roe was written in magically disappearing ink,” Ellington wrote.

Ellington acknowledged that Georgia courts must follow the U.S. Supreme Court’s recent positions on the meaning of the Constitution, but wrote that it is also important for state legislatures to do the same.

And Ellington argued that the Georgia Constitution contains protections against government overreach, including a requirement that the Legislature pass constitutional laws. He concluded that the state constitution requires lawmakers to try again to pass abortion restrictions after the Dobbs decision.

“To legislate in the post-Dobbs legal landscape, the General Assembly must legislate post-Dobbs,” Ellington wrote.

“As a matter of public policy, calling for a reenactment is healthy for our democracy,” he also wrote. “It promotes public civic engagement and requires our legislators to be responsive to public opinion in the face of new precedents and to take the will of the people into account when making policy decisions that have profound effects on them.”

‘Not over yet’

Reaction to the long-awaited ruling came quickly on Tuesday, but with the acknowledgment that the fate of the 2019 law remains unclear.

Still, Republican leaders and supporters of abortion restrictions cheered the decision.

“I applaud Judge Colvin and the Georgia Supreme Court for ruling today that our written Constitution takes precedence over judicial law,” said Kemp, who signed the restrictions into law. “Today’s victory represents another step toward ending this litigation and ensuring that the lives of Georgians of all ages are protected.”

Attorney General Chris Carr, whose office is defending the law in court, issued the following statement: “We are pleased with the court’s decision and will continue to defend the constitutionality of Georgia’s LIFE Act.”

Georgia Democrats complained about the opinion allowing the six-week ban to remain in place.

A “leaked” “draft” of a U.S. Supreme Court majority opinion overturning Roe v. Wade sparked a large protest to protect abortion rights outside the Georgia State Capitol on May 14, 2022. Ross Williams/Georgia Recorder (file photo)

U.S. Sen. Jon Ossoff called on lawmakers and Kemp to repeal the “extreme abortion ban” that worsens care for women.

“The state of Georgia’s six-week abortion ban – one of the most extreme in the country – deprives women of their autonomy in the most personal health decisions,” he said. “More than half of Georgia’s counties do not have an OB/GYN, and we have one of the highest maternal mortality rates in the country.”

The issue will continue to play a role at the ballot box. Next year is a presidential election year, with parliamentary seats also up for re-election.

“Starting in 2024, we will fight to keep anti-abortion extremists out of both the White House and the Statehouse and work to codify reproductive freedom protections into federal law,” he said Georgia Congresswoman Nikema Williams is chairwoman of the Georgia Democratic Party. “Today’s ruling is a blow to Georgians and reproductive freedom, but the fight continues.”

The plaintiffs and their attorneys vowed to continue the remainder of the pending litigation. Some of the plaintiffs were also part of a lawsuit in federal court was successful at first, but then collapsed after the Dobbs verdict was published. Last July, they quickly filed a new lawsuit with the Higher Regional Court.

“While today’s decision is disappointing, this case is far from over,” said Julia Kaye, a senior attorney at the American Civil Liberties Union’s Reproductive Freedom Project. “A law that forces the immense pain, risks and life-changing consequences of pregnancy on Georgians against their will is a clear violation of Georgians’ constitutional rights, and we will continue to do everything in our power to block this cruel law. ” Good.”