A Fulton County Superior Court judge on Monday said the state can continue enforcing Georgia’s new abortion law while a legal challenge makes its way through the courts.
Abortion rights advocates and providers had asked Judge Robert McBurney in a hearing last week to grant a temporary restraining order that would block the recently enacted law, which bans most abortions once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many women know they are pregnant.
In his order, McBurney dismissed the request for a temporary restraining order, saying state law only allows him to block a law from being enforced if he has already ruled that the statute is unconstitutional. McBurney has been asked to determine the constitutionality of the law. He has not yet ruled on the issue.
“To repeat, the court is making no finding on the merits of this important litigation,” McBurney said in his order. “The question of whether it is constitutional for the state to force a woman to carry to term a 6-week-old embryo against her wishes, even in the face of serious medical risk, remains to be answered.”
A hearing has not yet been set for McBurney to consider the law’s constitutionality.
A ruling from the 11th U.S. Circuit Court of Appeals in July allowed Georgia’s 2019 abortion law to be enforced.
The SisterSong Women of Color Reproductive Justice Collective and other abortion rights groups and providers sued in federal court in 2019 after the Legislature passed the law. Many of those same groups are now suing in Fulton County Superior Court citing the state’s constitution, which some legal experts have said grants more expansive rights to privacy than the U.S. Constitution.
The June U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization overturned the nearly 50-year-old Roe v. Wade decision that guaranteed a constitutional right to abortion and cleared the way for Georgia’s law to take effect.
Attorneys from the American Civil Liberties Union, representing abortion rights advocates and providers, has said the new law violates a woman’s right to privacy under the state constitution by giving prosecutors “virtually unfettered access to the medical files of anyone who seeks an abortion, without a subpoena.”
Attorneys for the state said the law “reflects the view that both mothers and their unborn children should be supported and that abortion, a lethal operation that ends the life of an unborn human being, is appropriate only in rare instances.”
Georgia’s new law is different from other states’ “heartbeat” statutes because it includes so-called personhood provisions, extending rights to an embryo once fetal cardiac activity can be detected. Parents would be able to claim a fetus, once a heartbeat is detected, on their state income taxes as a dependent, and the measure would also require state officials to count an unborn child toward Georgia’s population. Mothers can also file for child support once cardiac activity is detected.
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