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A judge overturned Georgia’s strict abortion ban. What now?
LISTEN: A Fulton County judge ruled Tuesday to overturn Georgia’s recently implemented abortion ban — setting the state’s abortion restrictions back to previous timelines. GPB's Riley Bunch reports.
A Fulton County judge ruled Tuesday to overturn Georgia’s recently implemented abortion ban — setting the state’s abortion restrictions back to previous timelines.
Superior Court Judge Robert McBurney sided with plaintiffs in a state constitutional challenge of the law that was filed quickly after the ban took effect.
House Bill 481 — passed by lawmakers in 2019 — was caught up in a legal battle for nearly three years. That changed when the Supreme Court overturned Roe v. Wade in June, which paved the way for its implementation.
The law bans nearly all abortions when “fetal cardiac activity” is detected — usually around six weeks of pregnancy. When the ban took effect in July, abortion care providers scrambled to accommodate patients and had to turn many away.
Plaintiffs in the most recent challenge claimed that the ban violates the stringent right to privacy under the Georgia Constitution and that since Roe v. Wade was the law of the land when it was passed in 2019, it’s void.
In Georgia, laws passed that violate the state or federal constitution at the time they are passed are “void ab initio.”
McBurney agreed with that precedent, stating in his 15-page ruling that, before the Supreme Court’s decision this summer, “laws unduly restricting abortion before viability were unconstitutional.”
“At that time — the spring of 2019 — everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability,” he wrote.
McBurney’s decision didn’t deem the law unconstitutional, setting up a potential battle in the state legislature next session if lawmakers decide to revive the bill.
“It may someday become the law of Georgia,” he wrote. “But only after our Legislature determines in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate whether the rights of unborn children justify such a restriction on women’s right to bodily autonomy and privacy.”
For now, Georgia’s abortion restrictions are reversed back to previous ones, making abortions legal again up until 22 weeks of pregnancy.
But the legal battle over the ruling is far from over. Attorney General Chris Carr quickly filed a notice of appeal to the Supreme Court of Georgia.
“We have filed a notice of appeal and will continue to fulfill our duty to defend the laws of our state in court, said Kara Richardson, spokesperson for the attorney general.
Another battle brewing
Abortion providers and advocates who signed onto the case cheered the judge’s decision on Tuesday.
“After a long road, we are finally able to celebrate the end of an extreme abortion ban in our state,” said Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, the lead plaintiff in the case.
“While we applaud the end of a ban steeped in white supremacy,” she said, “it should not have existed in the first place. Now, it’s time to move forward with a vision for Georgia that establishes full bodily autonomy and liberation for our communities.”
Amy Kennedy, vice president of external affairs at Planned Parenthood Southeast, said Planned Parenthood clinics in Georgia are no longer turning people away for abortions after six weeks.
"We have been flooded with phone calls since about 30 minutes after the ruling came down yesterday," Kennedy said. Most of those phone calls are from patients.
"But we know that the fight is not over. We know that the Georgia legislature could come back as early as January and enact a different ban, a stronger ban, with more exclusions," Kennedy said. "And we are gearing up for what that fight could look like next spring."
Recently reelected Republican Gov. Brian Kemp campaigned on and pushed for the passage of HB 481 during his first year in office.
“Today’s ruling places the personal beliefs of a judge over the will of the legislature and people of Georgia,” Andrew Isenhour, spokesperson for the governor, said in a statement. “The state has already filed a notice of appeal, and we will continue to fight for the lives of Georgia’s unborn children.”
Both the Georgia House and the Senate have new leadership this upcoming session. Rep. Jon Burns was nominated Monday as the House speaker and state Sen. Burt Jones is the incoming lieutenant governor, voted into office last week.
The so-called “heartbeat bill” passed the House in 2019 by just one vote. Three years later, a slimmer majority for Republicans could set up a contentious battle during the session which begins in January.
State Sen. Jen Jordan, who lost her bid for attorney general to Republican incumbent Chris Carr, sent a letter to the state in 2019 after HB 481 was passed, making the same argument that the law was void.
“Of course, (the) General Assembly can now pass (the) same ban in January, & it would be considered constitutional because Dobbs would control,” she said on social media. “My guess is that they would have (a) really hard time doing so. Dems have only increased their numbers in GA House & it barely made it last time.”
Charles Bullock, political science professor at the University of Georgia, theorized that in 2019 lawmakers had the chance to avoid the challenge in the first place.
On GPB’s Political Rewind, Bullock said that if lawmakers had passed a trigger law provision in the bill — that would have immediately let the ban take effect if Roe v. Wade was overturned — the plaintiff’s argument wouldn’t exist.
“Those laws said, ‘here's what will happen if Roe v. Wade gets overturned,’” he said. “But Georgia didn't adopt that. Had that piece of legislation had been written that way, then there would not be a problem because it was not going to take effect until after something happened in the Supreme Court.”
GPB reporter Sofi Gratas contributed to this report.