Georgia Supreme Court Reinstates Abortion Ban

Photo: Megan Varner/Getty Images

The Georgia Supreme Court issued an order on Monday that allows a near-total abortion ban to remain in effect as the justices consider the state’s appeal of a ruling that struck down the law. The decision comes one week after a lower court ruled that the ban is unconstitutional. 

The back-and-forth is sure to create confusion among abortion seekers, who for the past week were allowed up to receive care up to 22 weeks of pregnancy. Starting at 5 p.m. Eastern, most of those who are over around six weeks of pregnancy will need to leave the state or self-manage their abortions.

“Our patients deserve better,” Kwajelyn Jackson, executive director of Feminist Women’s Health Center, an abortion provider, said in a statement. “I am disappointed that the state of Georgia has once again chosen to subject our community to those devastating harms, even in light of the deadly consequences we have already witnessed.”

The legal challenge is playing out as the nation grapples with reporting by ProPublica showing that at least two women — Amber Thurman and Candi Miller — died in 2022 as a direct result of the law. In his September 30 ruling, Fulton County Superior Court Judge Robert McBurney issued a scathing condemnation of the near-total ban. “Women are not some piece of collectively owned community property the disposition of which is decided by majority vote,” McBurney wrote. “Forcing a woman to carry an unwanted, not-yet-viable fetus to term violates her constitutional rights to liberty and privacy.”

Republican governor Brian Kemp had signed the measure into law in 2019, but it did not go into effect until after the Supreme Court overturned Roe v. Wade in 2022. It prohibited abortion care once fetal cardiac activity is detected, which happens around the sixth week of pregnancy, or two weeks after the patient’s missed period. Though the ban allowed for exceptions in the case of rape, incest, or danger to the pregnant person’s life, Thurman’s case shows these carve-outs are not always accessible: She died after waiting 20 hours to obtain a D&C following an incomplete medication abortion, according to ProPublica.

In his ruling, Judge McBurney said the state cannot enforce the ban and instead must go back to the pre-2019 restrictions. The opinion echoes that of a North Dakota judge who, last month, struck down that state’s ban and ruled that its constitution protects patients’ ability to seek abortion care. (No clinics remained in North Dakota where abortions could resume, however.)

“A review of our higher courts’ interpretations of ‘liberty’ demonstrates that liberty in Georgia includes in its meaning, in its protections, and in its bundle of rights the power of a woman to control her own body, to decide what happens to it and in it, and to reject state interference with her health care choices,” McBurney added. “That power is not, however, unlimited. When a fetus growing inside a woman reaches viability, when society can assume care and responsibility for that separate life, then — and only then — may society intervene.”

In a footnote, the judge explicitly called out how abortion bans disproportionately impact poor women and women of color. “There is an uncomfortable and usually unspoken subtext of involuntary servitude swirling about this debate, symbolically illustrated by the composition of the legal teams in this case,” McBurney wrote. “It is generally men who promote and defend laws like the LIFE Act, the effect of which is to require only women — and, given the socio-economic and demographic evidence presented at trial, primarily poor women, which means in Georgia primarily black and brown women — to engage in compulsory labor, i.e., the carrying of a pregnancy to term at the government’s behest.”

The Cut offers an online tool you can use to search by Zip Code for professional providers, including clinics, hospitals, and independent OB/GYNs, as well as for abortion funds, transportation options, and information for remote resources like receiving the abortion pill by mail. For legal guidance, contact Repro Legal Helpline at 844-868-2812 or the Abortion Defense Network.