A Fulton County judge on Monday began hearing arguments on the constitutionality of Georgia’s new abortion law, which took effect earlier this year.
Fulton County Superior Court Judge Robert McBurney told the attorneys involved that he did not expect to issue a decision until after the Nov. 8 election.
“I set an aggressive schedule because this is an issue that needs attention now and not in three months,” McBurney said. “It probably needed attention three months ago, but here we are.”
A ruling from the 11th U.S. Circuit Court of Appeals in July allowed Georgia’s 2019 abortion law to be enforced. That means most abortions are no longer allowed once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many women know they are pregnant.
A June decision by the U.S. Supreme Court overturned Roe v. Wade, the 1973 ruling that guaranteed a nationwide right to abortion, paving the way for Georgia’s law to take effect.
McBurney scheduled the two-day bench trial to hear arguments from abortion rights supporters who want him to block the new restrictions from being enforced, saying it violates the right to privacy under the state constitution. Attorneys for the abortion rights providers also argued that when the law passed in 2019, Roe v. Wade was the law of the land and state law does not allow the Legislature to enact statutes that violate the law.
State lawyers contend the law should remain in effect because “abortion always harms a third party.”
Before beginning the bench trial, McBurney heard an argument from the state to dismiss the case. McBurney said he would rule on that motion at a later date.
Georgia’s law includes “personhood” provisions, which grant legal rights to a fertilized egg in the womb at any stage of development.
Solicitor General Stephen Petrany, representing the state, said that a pregnant woman no longer has a right to privacy because, upon conception and under Georgia law, a zygote or embryo is a distinct person.
“The right to privacy, such as it is, only extends so far as you’re not affecting anyone else,” Petrany said. “We think that’s just the ballgame.”
McBurney also heard testimony from Dr. Carrie Cwiak, an obstetrician-gynecologist and professor at Emory University who specializes in abortion care.
Cwiak, who is one of the plaintiffs in the lawsuit against the state, said a pregnant woman who has to carry and give birth because the law won’t allow an abortion can face severe physical and emotional stress, adding that data shows the risk of death from childbirth is greater than the risk after an abortion.
“What continues to sustain me (in) providing abortion care is the tremendous gratitude that people have when they tell you how much you’ve changed their life and how you’ve saved their life,” she said, dabbing her eyes with a tissue.
The trial is scheduled to continue Tuesday.
McBurney denied an August request from abortion providers asking him to stop enforcement of the law while the case was ongoing. A decision in the case will determine whether the law will continue to be enforced, though any decision will likely be appealed.
The state had unsuccessfully tried to “cancel or delay” this week’s trial, saying, among other things, it was too close to the Nov. 8 election. Abortion is a hot topic on the campaign trail this fall.
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