Georgia Supreme Court keeps six-week abortion ban on the books

Georgia’s “heartbeat” abortion ban is constitutional and will remain in place for now, the state Supreme Court ruled Tuesday.

The 6-1 ruling rejected a lower court’s reasoning that the six-week abortion ban was unconstitutional. The case will be sent back to that same court for additional arguments by abortion advocates and providers.

The ruling means access to abortion in the state will continue to be restricted, and most abortions will remain illegal once a physician can detect fetal cardiac activity, which is usually around six weeks gestation, before many people know they are pregnant.  

The ruling was praised by anti-abortion groups, including Susan B. Anthony (SBA) Pro-Life America.

“We congratulate Governor Kemp, Attorney General Carr, all our local allies, and the people of Georgia on a long and well-fought battle. Life is winning in hearts and minds nationwide. When you lead and stand boldly for life, Americans will stand with you,” SBA Pro-Life America President Marjorie Dannenfelser said. 

A Fulton County Superior Court judge previously sided with the SisterSong Women of Color Reproductive Justice Collective, along with other abortion providers, and ordered the state to stop enforcing the ban. The judge said the law was “plainly unconstitutional” because it was passed in 2019, while Roe v. Wade was still the law and abortion was constitutionally protected.

But the state Supreme Court said the U.S. Constitution doesn’t change, only its interpretation. Since Roe was overturned in 2022 by Dobbs v. Jackson Women’s Health Organization, that means abortion is not a constitutional right and the state’s ban is aligned with current law. 

“The holdings of United States Supreme Court cases interpreting the United States Constitution that have since been overruled cannot establish that a law was unconstitutional when enacted,” Justice Verda Colvin wrote for the majority.

“Because Dobbs is controlling precedent on whether the United States Constitution confers a right to abortion, and because the parties and the trial court do not dispute that the LIFE Act complies with Dobbs, it follows that the LIFE Act did not violate the United States Constitution when enacted in 2019,” Colvin wrote. 

The ruling is not the end of the legal fight over the state’s abortion ban. The case was remanded back to the trial court to rule on the remaining claims brought by the plaintiffs that the ban violates Georgians’ rights to privacy and equal protection under the state constitution. 

The abortion ban in Georgia was one of a wave of “trigger ban” laws across the country that took effect shortly after Roe was overturned. The law includes some exceptions for rape and incest, as long as a police report is filed, and allows for later abortions when the mother’s life is at risk or a pregnancy is deemed “medically futile.”

Abortion rights advocates said they would continue to fight for the law to be overturned.

“Today’s ruling is not the end of this fight for women’s healthcare,” Andrea Young, executive director of the American Civil Liberties Union of Georgia said in a statement. 

“Be clear, the right to abortion is on the ballot in 2024. Gov. Brian Kemp and the Georgia legislature acted to take away our rights. The Georgia legislature can restore our rights and we must organize to elect a pro-choice legislature,” Young said.