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Georgia Supreme Court allows 6-week abortion ban to stand for now

The Georgia Supreme Court has rejected a lower court’s ruling that Georgia’s restrictive “heartbeat” abortion law was invalid, leaving limited access to abortions unchanged for now.

Fulton County Superior Court Judge Robert McBurney said last November that Georgia’s ban, which prohibits abortions once a fetal heartbeat is detected, usually at about six weeks, was “unequivocally unconstitutional” because it was enacted in 2019, when Roe v. Wade allowed abortions well beyond 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 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 ACLU represented doctors and advocacy groups that had asked McBurney to throw out the law.

The ruling does not change abortion access in Georgia, but it won’t be the last word on the 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.

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.

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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