Georgia Supreme Court hears arguments on state’s heartbeat bill

The state’s highest court heard arguments on Tuesday over Georgia’s controversial abortion ban, barring the procedure after six weeks.
Published: Mar. 28, 2023 at 8:14 PM EDT
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ATLANTA, Ga. (Atlanta News First) - The state’s highest court heard arguments on Tuesday over Georgia’s controversial abortion ban, barring the procedure after six weeks.

Known as a heartbeat bill – since abortion is outlawed after the point where a fetus’ heartbeat can be detected – the state Supreme Court is tasked with weighing whether the legislation is usable since it was passed in 2019 when Roe v. Wade was still in effect and guaranteed a federal right to abortion.

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A legal consideration known as ‘void ab initio’ dictates that lawmakers can’t pass an unconstitutional law, knowingly or unknowingly, even if it later becomes constitutional.

It’s the consideration Superior Court Judge Robert McBurney used to put a hold on the ban in November. The State Supreme Court reinstated the ban while the case worked its way through the legal system.

“If a court says in 2000 that his law passed in 1980 is unconstitutional, well then it’s always been unconstitutional assuming there wasn’t some amendment to the constitution,” said Solicitor General Stephen J. Petrany, giving an example. “Because courts don’t make the law up, they just tell you what the law is in their estimation.”

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Plaintiffs argue that the legislature needs to go back and pass a new law now that Roe has been overturned in order for the ban to be constitutionally legal.

“Roe and Casey were undoubtedly the law of the land in 2019 and it blatantly violated that precedent, so it’s a pretty easy decision for the court to make,” said attorney Julia Stone, who said the ban is no good. “There are 125 years of Georgia Supreme Court precedent that says you look at the constitutionality of a statute at the moment of its enactment. So when you do that here, it’s a pretty straightforward application.”

The Georgia Supreme Court will have six months to make a decision on the ban and its constitutionality. They will either uphold the lower court’s decision or rule that the ban can stay in effect permanently.

“If you’re going to go with this theory of a superior courts order and the plaintiff’s theory, you’re really stuck with the idea that judges really are essentially just creating the law,” said Petrany.

Reproductive rights advocates say this isn’t the end – there’s another pending claim in Georgia’s superior court arguing that women have the right to an abortion based on the state’s guaranteed right to privacy.

“I am exhausted at this moment,” said Kwajelyn Jackson with the Feminist Women’s Health Center at a press conference after the hearing. “I am tired of all the ways that we have had to prove our humanity, the ways that we have had to fight for our dignity, to make sure that our community has the things that they need, the things they have been constantly denied by courts just like this.”

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