Georgia Supreme Court Restores State’s 6-Week Abortion Ban

The ban will resume while the court considers an appeal to a decision that had briefly allowed greater access to abortions in the state.

The Georgia Supreme Court reinstated on Monday a state law that prohibits abortions beyond six weeks of pregnancy while it considers an appeal to a lower-court decision that had briefly allowed greater access to the procedure.

The law, called the Living Infants Fairness and Equality Act, or the LIFE Act, was set to take effect again at 5 p.m. on Monday.

Six of the justices agreed in full with the majority ruling, and another only in part. One justice did not participate and another had been disqualified from participating in the case.

When the U.S. Supreme Court overturned Roe v. Wade in 2022, states were left to regulate the rules around abortion. Since then, about 20 states have banned or restricted the procedure, effectively ending the practice in the South. Many lawsuits have been filed to challenge those new standards.

On Sept. 30, Judge Robert C.I. McBurney of the Fulton County Superior Court overturned the Georgia law because he found that it violated the State Constitution, which he wrote protected the rights 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.”

The judge’s decision allowed the procedure to continue in Georgia up to 22 weeks of pregnancy, giving women in the state and across the South a short window during which they could obtain an abortion past six weeks. Many women do not even realize they are pregnant at six weeks.

After Judge McBurney’s ruling, many clinics in Georgia began offering medical and surgical abortions up to about 11 or 12 weeks of pregnancy. One clinic, the Feminist Women’s Health Center in Atlanta, has performed the procedure until 22 weeks.

Republican state officials were angered by the lower court’s decision, and moved to immediately appeal it.

“We commend the court for granting our request to allow the LIFE Act to once again take effect, and we will continue to defend the laws and the Constitution of the State of Georgia,” said Chris Carr, Georgia’s Republican attorney general.

On Monday, Justice John J. Ellington, who only partly agreed with the majority, wrote in a six-page dissent that the right course would have been to continue to suspend the six-week ban while the appeal was being considered.

“The state should not be in the business of enforcing laws that have been determined to violate fundamental rights guaranteed to millions of individuals under the Georgia Constitution,” he wrote.

Anthony Michael Kreis, an assistant law professor at Georgia State University, said that Justice Ellington’s reasoning was “representative of his broad skepticism of the law’s constitutionality.”

Without providing explanation, the State Supreme Court left in place the lower court’s block on a separate provision that allows prosecutors to broadly obtain the medical records of women who have had abortions.

Monday’s ruling was the second time that the six-week ban had been reinstated by the State Supreme Court. In the first challenge to the law, the court rejected arguments made by doctors and advocacy groups that the act was void and unconstitutional when the state approved it before the U.S. Supreme Court’s decision to overturn Roe.

The court, however, sent the case back to a lower court on the question of whether the State Constitution protected a right to privacy, and whether that right encompassed abortion, which Judge McBurney decided on in late September.

Abortion providers said they would maintain their challenge to the six-week ban.

“We still believe in a Georgia where we all have the right to decide whether or not to have children and raise those children in safe, sustainable communities,” said Monica Simpson, the executive director of SisterSong Women of Color Reproductive Justice Collective, the plaintiff in the case.

Abortion access has remained a top campaign issue in Georgia, where President Biden won a narrow victory in 2020.

Vice President Kamala Harris has centered much of her presidential campaign around a woman’s right to have the procedure, and has drawn attention to the deaths of Amber Nicole Thurman and Candi Miller, two Georgia women who died after they couldn’t get access to abortions and urgent medical care.