Abortion providers take challenge of ban on procedure to state courts

Maya T. Prabhu | The Atlanta Journal-Constitution | July 26, 2022

Less than a week after a federal appeals court allowed Georgia’s restrictive abortion law to go into effect, activists and providers have taken their challenge of the statute to state court.

The ruling from the 11th U.S. Circuit Court of Appeals last week allowed Georgia’s 2019 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.

The SisterSong Women of Color Reproductive Justice Collective and other abortion rights groups and providers sued Georgia 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 American Civil Liberties Union of Georgia, representing abortion rights advocates and providers, said the new law violates the state right to privacy by giving prosecutors “virtually unfettered access to the medical files of anyone who seeks an abortion, without a subpoena.”

SisterSong Executive Director Monica Simpson said, “SisterSong and our partners have been in the fight against Georgia’s six-week abortion ban from the beginning, and today we are sending a clear message that we’re not giving up.”

Simpson said the new law will have a disproportionate effect on poor people and people of color, who often have limited access to health care and may find it difficult to travel to other states to terminate a pregnancy. Georgia’s maternal mortality rate has consistently ranked among the worst in the nation.

A spokesman for Georgia Attorney General Chris Carr said the office is reviewing the newly filed lawsuit.

Cole Muzio, who runs the conservative Norcross-based Frontline Policy Action group and lobbied lawmakers to pass the 2019 law, said the ACLU is “lighting their money on fire.”

“They have no case. No argument,” Muzio said. “This pathetic attempt to please fringe activists and donors is both laughable and sad.”

Julia Kaye, staff attorney with the ACLU Reproductive Freedom Project, said that the Georgia Supreme Court has repeatedly ruled in favor of an individual’s right to privacy, citing a 1998 example where the state’s high court found an anti-sodomy law was unconstitutional.

“This lawsuit is grounded in more than a century of Georgia Supreme Court precedent, establishing that the Georgia Constitution is highly protective of an individual’s right to be free from political interference with their body, health and life,” Kaye said.

About a month ago, the 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.

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.

Asked last week, many agencies said they had not yet put procedures in place to grant rights to an embryo.

In its latest challenge, attorneys are asking the court to immediately block the law while the case makes its way through the legal system. They have asked for the court to schedule a hearing next week. Fulton County Superior Judge Robert McBurney has been assigned to the case, ACLU attorneys said.

“Every day this ban is in effect, more Georgians are being forced into pregnancy against their will, more Georgians are being forced to travel thousands of miles out of state for essential health care and more Georgians are being denied urgent care for a pregnancy complication or miscarriage,” Kaye said.