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November 18, 2022
Health Law Weekly

Georgia Trial Court Blocks State’s “Post-Heartbeat” Abortion Ban

  • November 18, 2022

A Georgia trial court ruled November 15 that the state’s “post-heartbeat” ban on abortion is void because it was unconstitutional when it was enacted in 2019.

Georgia Superior Court of Fulton County Judge Robert C.I. Mcburney enjoined the state from enforcing the provisions of the Living Infants Fairness and Equality (LIFE) Act that criminalize abortions after detectable fetal cardiac activity, which typically occurs around six weeks.

The provision were enacted in 2019, “when the supreme law of this land unequivocally was . . . that laws unduly restricting abortion before viability were unconstitutional,” McBurney said. It was not necessary to reach the merits of plaintiff’s challenge, McBurney noted, because, under the Georgia Constitution, laws that violate the U.S. Constitution at the time of enactment are void.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), which overruled Roe v. Wade, did not change the fact that the provision criminalizing abortion after six weeks was never even “on the books.”

“Under Dobbs, it may someday become the law of Georgia, 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,” McBurney said.

McBurney also struck down another provision of the LIFE Act requiring a physician who performs an abortion after detecting fetal cardiac activity to file a report with the state’s Department of Public Health. However, a provision requiring doctors to determine “the presence of a detectable human heartbeat . . . of an unborn child” before performing any abortion could stand because it did not prohibit any medical procedure and could serve the acceptable purpose of informing the mother about her pregnancy, McBurney said.

McBurney said he would address plaintiff’s challenge to a provision authorizing the district attorney to access medical records pertaining to abortions performed in the district attorney’s judicial circuit in a subsequent order.

The state has filed a notice of appeal of the permanent injunction to the Georgia Supreme Court.

Sistersong Women of Color Reproductive Justice Collective v. Georgia, No. 2022CV367796 (Ga. Super. Ct. Nov. 15, 2022).