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'It is not the law of Georgia now' | Judge overturns state's abortion ban

Opponents of the law had argued Georgia's state constitution offers a right to privacy the law violates.

FULTON COUNTY, Ga. — A judge overturned Georgia’s ban on abortion starting around six weeks into a pregnancy, ruling Tuesday that it violated the U.S. Constitution and U.S. Supreme Court precedent when it was enacted. Fulton County Superior Court Judge Robert McBurney's ruling applies statewide. The ban had been in effect since July.

It prohibited 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 were effectively banned at a point before many women knew they were pregnant.

Kara Richardson, a spokesperson for Georgia Attorney General Chris Carr, said in an email that the office intends to pursue an “immediate appeal."

McBurney's ruling came in a lawsuit filed in July by doctors and advocacy groups that sought to strike down the ban on multiple grounds, including that it violates the Georgia Constitution’s right to privacy and liberty by forcing pregnancy and childbirth on women in the state.

RELATED: What does the ruling overturning Georgia's abortion law mean?

McBurney's ruling agreed with a different argument made in the lawsuit, that the ban was invalid because it violated the U.S. Constitution and U.S. Supreme Court precedent at the time it became law.

Assistant Professor of Law at Georgia State University, Anthony Michael Kreis, explained that Tuesday's decision to overturn the six-week ban came down to two questions: was the bill, which Kemp signed into law in 2019, valid when it passed, and does the law violate one's right to privacy, which is protected by the state constitution?

“The judge didn't have to reach the second question, because Judge McBurney said that on the first question, the law was never valid in the first place," Kreis explained. "So what Judge McBurney has said today is we don't need to resolve those privacy-related questions because the General Assembly has to pass a new abortion law.”

Kreis said this means the law is overturned effective immediately state-wide.  

"The Georgia State Constitution has a unique provision that says that if a law is invalid when the General Assembly passes it, it never is valid," the law professor said. "So because the General Assembly passed the six-week abortion ban at a period of time where federal constitutional law says that was impermissible and unconstitutional, that the Georgia General Assembly didn't have the power to pass the law at the time that it did.” 

Georgia’s law was passed by state lawmakers and signed by Republican Gov. Brian Kemp in 2019 but had been blocked from taking effect until the Supreme Court overturned Roe v. Wade, which had protected the right to an abortion for nearly 50 years. The 11th U.S. Circuit Court of Appeals allowed Georgia to begin enforcing its abortion law just over three weeks after the high court’s decision in June.

McBurney wrote in his ruling that when the law was enacted, “everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability.”

He wrote that the state’s law “did not become the law of Georgia when it was enacted and it is not the law of Georgia now.”

The state had argued that the Roe decision itself was wrong and the Supreme Court ruling wiped it out of existence.

McBurney did leave the door open for the state Legislature to revisit the ban.

Now that the Supreme Court has overturned Roe v. Wade, the prohibition on abortions provided for in the 2019 law “may someday become the law of Georgia,” he wrote.

But, he wrote, that can happen only after the General Assembly “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.”

Tuesday's move came with mixed reactions. 

Some pro-life organizations were shocked by the decision. They said they've spent decades fighting for the rights of unborn babies and that when the U.S. Supreme Court overturned Roe v. Wade, it validated their work. Now they feel they have to start over. 

Zemmie Fleck, Georgia Right to Life executive director, said this move doesn't stop their work.

"We are asking for an amendment that bestows the right to life, and actually recognizes that right to life on the preborn child at the moment of fertilization," Fleck said.

State Rep. Shea Roberts was among those who advocated for the new law to be repealed. Roberts said she and other pro-choice advocates are happy that women will no longer have to travel out of state for an abortion if they are past that six-week mark. And, she shared her personal story with 11Alive. 

“I made a decision under the recommendation of my doctor because I had small kids at home they said 'don't put that stress on your body for something that isn't going to survive,'" she said. "So I made that really heartbreaking decision of my daughter and the fact that my daughters and all of our daughters could not make those same healthcare decisions -- especially when the doctor recommended it --  put them in danger and we're already have the highest maternal rate in the country and it disproportionately impacts women of color. So, this was not helping anything -- this was making it worse."

Representatives from Plan Parenthood, one of the plaintiffs in the lawsuit, said their legal team is already preparing for the state's appeal.

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