Georgia Supreme Court reinstates six-week abortion ban
In his Nov. 15 decision, Fulton County Superior Court Judge Robert McBurney determined that the so-called “heartbeat law” was unconstitutional when enacted in 2019 because the prevailing law of Roe v. Wade prohibited abortion bans pre-viability. After his ruling, abortion access in Georgia reverted to the pre-ban level of up to 22 weeks of pregnancy.
After Roe v. Wade was overturned in June, states were free to enact laws that banned abortion before fetal viability. In states such as Georgia, abortion bans were enacted at six weeks, which is the earliest that fetal cardiac electrical activity — distinct from the heartbeat of a fully-formed organ — can be detected.
Though Wednesday’s order is not the final word on the state’s abortion law, issuing the order put the six-week ban back into immediate effect. The court denied a request by abortion providers to give 24 hours’ notice before reinstating the ban.
Abortion rights groups have criticized Georgia’s law as extreme, noting that it bans abortion before people often know they’re pregnant. Victims seeking abortion due to rape or incest are required to file a police report on the assault to receive the exemption.
A spokesperson for Attorney General Chris Carr (R) said Wednesday that the office welcomed the news.
“We are pleased with the Court’s action today. However, we are unable to provide further comment due to the pending appeal,” Kara Richardson, a spokesperson for Carr’s office, said in an email.
The abortion clinics and reproductive rights groups who are among the plaintiffs criticized the decision, saying it once again upended the lives of Georgians seeking access to abortion.
“It is outrageous that this extreme law is back in effect, just days after being rightfully blocked,” Alice Wang, staff attorney at the Center for Reproductive Rights, said in a statement. “This legal ping pong is causing chaos for medical providers trying to do their jobs and for patients who are now left frantically searching for the abortion services they need.”
When the lower court overturned the ban last week, both sides were fully aware that the decision was tentative. Georgia’s abortion providers cautiously resumed scheduling abortions up to 22 weeks, while antiabortion lawmakers such as Georgia Rep. Ed Setzler (R), who authored the state’s abortion law, shrugged off last week’s lower court ruling, accurately predicting that it would be quickly voided by the state Supreme Court.
The future of Georgia’s abortion law is likely to be settled in court rather than in the Georgia statehouse, where political analysts and historians say lawmakers are fatigued by the bitter 2019 session — where the six-week ban passed by a single vote — and are ready to tackle other legislative priorities.
Add to that the recent string of victories in the midterm elections that demonstrated the broad popularity of abortion access.
Charles Bullock, a political science professor at the University of Georgia who specializes in Southern and legislative politics, said abortion bans in the increasingly purple state are likely to fire up deep-red base voters, but could backfire with the state’s overall populace.
He cited a recent poll from the School of Public and International Affairs Survey Research Center at the University of Georgia that found that a majority of respondents opposed or strongly opposed the state’s six-week abortion ban.
“Statewide, this is not a winning issue,” he said of the abortion restrictions. While that’s unlikely to affect local legislators in safe districts, stiff opposition to abortion rights “could come back to bite [lawmakers] if they attempt a run at statewide office.”
Abortion has emerged as a major issue in the Georgia Senate race between incumbent Sen. Raphael G. Warnock (D) and Republican challenger Herschel Walker, whose staunchly antiabortion public stance has run up against accusations by two women that while in a relationship with Walker, he pressured them to have abortions.
Georgia Republican analyst Brian Robinson said a split will emerge among antiabortion Republicans if more abortion laws are forced back into chambers.
“You’ll have some who will want us to go the direction of Virginia, which is vying for [a ban at 15-weeks], and some who will want to stick with the ‘heartbeat’ standard — and some who will favor a complete ban,” Robinson said.
But even for those whose opposition to abortion stems from what Robinson said were genuinely held beliefs on the sanctity of life, they live in a political context.
“It’s not a debate they’re eager to have,” he said. “Right now, what they’d rather be talking about and messaging on is solutions for our economy and crime.”