Georgia’s six-week abortion ban will remain in place after the state Supreme Court ruled Tuesday that the law is valid — a move that leaves abortion largely inaccessible in the South.
Tuesday’s ruling reverses a lower court decision from 2022 that struck down the law on the grounds that it was unconstitutional when the state legislature passed it in 2019. At the time, Roe v. Wade, which barred states from prohibiting abortion before viability, was still the law of the land. Doctors, abortion providers and other advocacy groups argued that the law was not only unenforceable because it was “void ab initio” — void from the start — but that it violates due process, equal protection and other rights inherent in Georgia’s Constitution.
Fulton County Superior Court Judge Robert McBurney agreed with the plaintiffs’ argument about the law’s timing. He determined in his 2022 decision that key parts of it “were plainly unconstitutional when drafted, voted upon, and enacted.”
The majority in Georgia’s Supreme Court, however, disagreed.
“The holdings of United States Supreme Court cases interpreting the United States Constitution that have since been overruled cannot establish that a law was unconstitutional when enacted and therefore cannot render a law void ab initio,” Justice Verda M. Colvin wrote for the majority.
The law was among the strictest in the nation when it was signed by Gov. Brian Kemp (R) in 2019. The case will return to the lower court to settle the questions over whether the violates inherent rights in the state Constitution.
While Tuesday’s decision is not the final word on the state law, it was hailed by Kemp and his Republican attorney general, Chris Carr, who said his office will continue to defend the constitutionality of the law, known as the Georgia Life Act.
Carol McDonald, president and CEO of Planned Parenthood Southeast Advocates, said in a statement that its health-care centers in the region will remain open to provide the limited abortion care that is legal.
The current law bans abortion after six weeks, which is the earliest that fetal cardiac electrical activity — distinct from the heartbeat of a fully formed organ — can be detected. The law has few exceptions, which include when the pregnant person’s life is at risk or in cases of rape and incest, with the requirement that a police report is filed.
Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, the lead plaintiff in the case, called the Tuesday decision “devastating.”
“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.
The fight over abortion access has only intensified since the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling last year made control over abortion laws a state issue. Abortion is now banned or heavily restricted in 18 states, including Georgia, according to the Guttmacher Institute, a nonprofit research center that supports abortion rights. Among these, 15 instated total bans, with very limited exceptions. Two others ban abortions at 12 weeks and onward.
SBA Pro-Life America President Marjorie Dannenfelser framed Tuesday’s ruling as a win for antiabortion advocates, saying in a statement: “When you lead and stand boldly for life, Americans will stand with you.”
But the reality has been different at the ballot box, where voter referendums to preserve or expand access to abortion have been successful as well as galvanizing forces for abortion rights advocates.
“Today’s ruling is not the end of this fight for women’s health care,” Andrea Young, executive director for the ACLU of Georgia, said in a statement. “Be clear, the right to abortion is on the ballot in 2024. Gov. Brian Kemp and the Georgia legislature acted to take away our rights. The Georgia legislature can restore our rights and we must organize to elect a pro-choice legislature.”
Karine Jean-Pierre, a spokeswoman for President Biden, decried the ruling. She said in a Tuesday statement that the administration “won’t stop fighting until the protections of Roe V. Wade are restored in federal law.”
The state of abortion access has been under continual revision since it passed in 2019. Though it was on the books, a federal court blocked the law from taking. The ban was allowed to take effect in June 2022, when the U.S. Supreme Court overturned Roe’s decades-old protections. Then the law was overturned in November of that year in Fulton County — only for the Georgia Supreme Court to grant an emergency stay of the injunction a week later, which allowed the legislation to remain in affect while appeals continued.