Georgia Supreme Court sends abortion law challenge back to lower court, leaving access unchanged

ATLANTA (AP) — The Georgia Supreme Court on Tuesday rejected a lower court ruling that the state’s restrictive abortion law was invalid, leaving limited access to abortions unchanged for now.

Fulton County Superior Court Judge Robert McBurney said last November that the ban was “unequivocally unconstitutional” because it was enacted in 2019, when Roe v. Wade allowed abortions well past six weeks. Georgia’s law bans most abortions after roughly six weeks.

The Georgia Supreme Court in a 6-1 decision said McBurney was wrong.

“When the United States Supreme Court overrules its own precedent interpreting the United States Constitution, we are then obligated to apply the Court’s new interpretation of the Constitution’s meaning on matters of federal constitutional law,” Justice Verda Colvin wrote for the majority.

The American Civil Liberties Union of Georgia said in a news release the opinion disregards “long-standing precedent that a law violating either the state or federal Constitution at the time of its enactment is void from the start under the Georgia Constitution.”

The group represented doctors and advocacy groups that had asked McBurney to throw out the law.

The ruling does not change abortion access in Georgia and is not the last word on the state’s ban.

The state Supreme Court had previously allowed enforcement of the ban to resume while it considered an appeal of the lower court decision. The lower court judge has also not ruled on the merits of other arguments in a lawsuit challenging the ban, including that it violates Georgia residents’ rights to privacy.

In its ruling on Tuesday, the state Supreme Court sent the case back to McBurney to consider those arguments.

Georgia Gov. Brian Kemp, a Republican who signed Georgia’s ban, hailed the ruling.

“Today’s victory represents one more step towards ending this litigation and ensuring the lives of Georgians at all ages are protected,” he said in a statement.

White House Press Secretary Karine Jean-Pierre, in a statement late Tuesday, said such bans have had “dangerous impacts” on women across the country.

“Women have been denied the medical care they desperately need to preserve their health, including being turned away from emergency rooms, forced to travel hundreds of miles for care and faced complications that make it more difficult to have children in the future,” Jean-Pierre said. “It doesn’t end there. Republican elected officials are doubling down and calling for a national abortion ban that would criminalize reproductive health care in every state. President Biden and Vice President Harris won’t stop fighting until the protections of Roe v. Wade are restored in federal law.”

Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, said it would continue the suffering women have faced. SisterSong is one of the plaintiffs challenging Georgia’s law.

“This abortion ban has forced Georgians to travel across state lines at great expense or continue the life-altering consequences of pregnancy and childbirth against their wills,” she said in a statement.

McBurney had said the law was void from the start, and therefore, the measure did not become law when it was enacted and could not become law even after the U.S. Supreme Court overturned Roe v. Wade last year.

State officials challenging that decision noted the Supreme Court’s finding that Roe v. Wade was an incorrect interpretation of the U.S. Constitution. Because the Constitution remained the same, Georgia’s ban was valid when it was enacted, they argued.

In Tuesday’s ruling, Colvin said McBurney’s decision was based on the “faulty premise” that the U.S. Supreme Court changed the meaning of the U.S. Constitution when it overruled Roe.

The court does not have that power, she said, so the Constitution “means today what it meant when” Georgia’s ban was enacted in 2019.

In a dissenting opinion, Justice John Ellington said “well-settled Georgia law” establishes that a legislative act that is unconstitutional on the date it is enacted is void “forever afterward.”

Georgia’s law bans most abortions once a “detectable human heartbeat” is present. Cardiac activity can be detected by ultrasound in cells within an embryo that will eventually become the heart as early as six weeks into a pregnancy. That means most abortions in Georgia are effectively banned at a point before many women know they are pregnant.

The law includes exceptions for rape and incest, as long as a police report is filed, and allows for later abortions when the mother’s life is at risk or a serious medical condition renders a fetus unviable.

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Associated Press writer Jeff Amy contributed to this report.

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