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Georgia’s ‘heartbeat’ abortion ban blocked

Judge’s decision stops ban enforcement and allows most abortions in the state to continue up to 22 weeks of pregnancy

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A small group sits on the steps of the Georgia state Capitol protesting the overturning of Roe v. Wade.

A small group, including Stephanie Batchelor, left, sits on the steps of the Georgia state Capitol protesting the overturning of Roe v. Wade on June 26, 2022. A judge overturned Georgia’s ban on abortion starting around six weeks into a pregnancy, ruling Tuesday, Nov. 15, 2022 that it violated the U.S. Constitution and U.S. Supreme Court precedent when it was enacted.

Ben Gray, Associated Press

A Georgia Superior Court judge on Tuesday blocked a state law banning abortion after a heartbeat is detectable around six weeks of pregnancy, clearing the way for abortions up to 22 weeks of pregnancy.

Politico reported that the decision is likely to reach the Georgia Supreme Court.

Fulton County Superior Court Judge Robert McBurney ruled that two sections of the 2019 abortion law were “plainly unconstitutional when drafted” and therefore unenforceable.

Per CNN, “HB481, dubbed Georgia’s LIFE Act, bans, with some exceptions, abortion when early cardiac activity is detected — as early as six weeks into a pregnancy, when many women don’t yet know they are pregnant.”

McBurney wrote that when the law was enacted in 2019, “everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability. … Such bans were banned.” He said that the Georgia law restricting abortion to around six weeks “did not become the law of Georgia when it was enacted and it is not the law of Georgia now.”

“Because the law was enacted before the U.S. Supreme Court overturned its 1973 decision in Roe v. Wade, the judge wrote, the ban must be evaluated using a 2019 lens,” according to The New York Times.

CNN said that “because the right to pre-viability abortion existed nationwide when the law was enacted, Georgia could not legally restrict it at that time,” according to the judge.

CNN wrote that “the legislation had been blocked from taking effect until this summer. After the Supreme Court ruled on Dobbs v. Jackson Women’s Health Organization — which overturned Roe v. Wade, holding that there is no longer a federal constitutional right to an abortion — the Georgia ban remained on hold for several weeks until a federal appellate court allowed the law to be immediately enforced.”

McBurney noted that a six-week ban could still become the law of Georgia in a post-Roe environment, but it would have to be enacted post-Roe to do so.

The SisterSong Women of Color Reproductive Justice Collective brought the lawsuit challenging the abortion restriction. Per The Washington Post, they argued the state’s “heartbeat bill” was a violation of a pregnant person’s ”liberty and privacy rights under Georgia’s constitution.” And they said it also violated the U.S. Constitution at that time, as abortion under Roe was a constitutional right.

The Georgia Attorney General’s Office has said McBurney’s ruling will be appealed by the state.

The court’s decision “comes a week after the country’s midterm elections, in which the abortion issue played a key role — especially in Georgia, where a tight U.S. Senate race between a Democratic incumbent, Raphael Warnock, and a Republican challenger, Herschel Walker, heads to a runoff,” The New York Times reported.