Georgia Abortion Law Survives Challenge (For Now)

In the wake of the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, a law often called a “heartbeat ban” took effect in Georgia. The law prohibited doctors from performing abortions, with some exceptions, once a human heartbeat could be detected in the fetus. This often occurs about six weeks into a pregnancy.

The state legislature had passed the heartbeat ban in 2019, three years before the Dobbs decision. At that time, Roe v. Wade and related cases continued to guarantee a constitutional right to abortion before a fetus reached viability. (This means the time at which the fetus can survive outside the womb, several months into a pregnancy.) As a result, the “heartbeat ban” was unconstitutional and thus unenforceable at the time that it was enacted.

Assisted by the ACLU, various doctors and advocacy groups challenged the Georgia law in court. They argued that a law that violates the U.S. or Georgia Constitution when it is enacted is “void from the start” under the Georgia Constitution. In other words, the fact that the Supreme Court eventually overturned Roe with Dobbs should not allow the law to take effect at that point. The challengers initially won a victory in Fulton County Superior Court, where a judge struck down the law in November 2022. However, the ban remained enforceable while the state appealed this decision.

Last week, the Georgia Supreme Court reversed the lower court, leaving the law in effect for now. The Court found that it needs to apply a new interpretation of the U.S. Constitution by the U.S. Supreme Court when that Court overrules a federal constitutional precedent.

This does not necessarily mean that the ACLU challenge will fail. The Fulton County judge did not consider certain other arguments raised in the lawsuit, such as a claim based on privacy rights. The Georgia Supreme Court refrained from discussing these arguments. Instead, it sent the case back to the lower court to review them. Depending on what happens at that level, though, the Georgia Supreme Court may eventually see the case again.

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