In his Nov. 15 ruling, Fulton County Superior Court Judge Robert McBurney determined the so-called ‘heartbeat law’ was unconstitutional when it was signed into law in 2019 because the law in force Roe vs. Wade prohibited abortion prohibits pre-viability. After her ruling, access to abortion in Georgia returned to pre-ban levels of up to 22 weeks of pregnancy.
After Roe vs. Wade was overthrown in June, states were free to enact laws prohibiting abortion before fetal viability. In states like Georgia, abortion bans have been enacted at six weeks, which is the first time that fetal cardiac electrical activity — distinct from the heartbeat of a fully formed organ — can be detected.
While Wednesday’s order isn’t the final word on state abortion law, the release of the order put the six-week ban back into effect immediately. The court rejected a request by abortion providers to give 24 hours’ notice before reinstating the ban.
Abortion rights groups have criticized Georgia’s law as extreme, noting that it bans abortion before people often know they are pregnant. Victims seeking an abortion due to rape or incest are required to file a police report of the assault to qualify for the exemption.
A spokesman for Attorney General Chris Carr (R) said Wednesday the office welcomed the news.
“We are satisfied with the Court’s action today. However, we are unable to provide further comment due to the ongoing appeal,” Kara Richardson, a spokeswoman for Carr’s office, said in an email.
Abortion clinics and reproductive rights groups that are among the plaintiffs criticized the decision, saying it once again upended the lives of Georgians seeking access to abortion.
“It is outrageous that this extreme law is back in effect, just days after it was rightfully blocked,” Alice Wang, an attorney at the Center for Reproductive Rights, said in a statement. “This legal ping-pong is wreaking havoc on providers trying to do their jobs and on patients who are now frantically seeking the abortion services they need.”
When the lower court overturned the ban last week, both sides were fully aware that the decision was tentative. Georgia abortion providers have cautiously resumed scheduling abortions up to 22 weeks, while anti-abortion lawmakers such as Georgia Rep. Ed Setzler (R), who drafted the state’s abortion law state, ignored last week’s lower court decision, accurately predicting it would be quickly overturned by the state Supreme Court.
The future of Georgia’s abortion law will likely be settled in the courts rather than in the Georgia statehouse, where political analysts and historians say lawmakers are weary of the bitter 2019 session — where the six-week ban passed by a single vote – and are ready to tackle other legislative priorities.
Add to that recent winning streak during the mid-term elections which demonstrated the great popularity of access to abortion.
Charles Bullock, a professor of political science at the University of Georgia who specializes in Southern politics and legislation, said banning abortion in the increasingly purple state are likely to trigger deep red core voters, but could backfire on the state’s entire population.
He quoted a recent survey from the School of Public and International Affairs Survey Research Center at the University of Georgia which found that a majority of respondents opposed or strongly opposed the state’s six-week abortion ban.
“Statewide, it’s not a winning question,” he said of the abortion restrictions. While this is unlikely to affect local lawmakers in safe districts, strong opposition to abortion rights “could come back to bite [lawmakers] if they attempt to run for state office.
Abortion has become a major issue in the Georgia Senate race between incumbent Senator Raphael G. Warnock (D) and Republican challenger Herschel Walker, whose staunchly anti-abortion public stance has clashed with accusations from two women that, while in a relationship with Walker, he pressured them into having abortions.
Georgia Republican analyst Brian Robinson said a split will emerge among anti-abortion Republicans if more abortion laws are forced back into the chambers.
“You will have some who will want us to go over to Virginia, which is in the running for [a ban at 15-weeks]and some who will want to stick to the ‘heartbeat’ standard – and some who will favor a full ban,” Robinson said.
But even for those whose opposition to abortion stems from what Robinson said are sincere beliefs about the sanctity of life, they live in a political context.
“It’s not a debate they’re looking forward to having,” he said. “Right now what they prefer to talk about and send messages about is solutions for our economy and our crime.”