In a one-page order on Wednesday, justices put a lower court ruling overturning the ban on hold while they consider an appeal. Doctors who had started providing abortions after six weeks had to immediately stop.
Abortion advocates blasted the order, saying it will traumatise women who must now arrange travel to other states for an abortion or keep their pregnancies. Women waiting for an abortion at providers’ offices were turned away, according to the American Civil Liberties Union of Georgia, which represents abortion providers challenging the ban.
“It is outrageous that this extreme law is back in effect, just days after being rightfully blocked,” said Alice Wang, a lawyer with the Center for Reproductive Rights, which also represents plaintiffs in the case.
“This legal ping pong is causing chaos for medical providers trying to do their jobs and for patients who are now left frantically searching for the abortion services they need.”
The state attorney general’s office in a court filing said “untold numbers of unborn children” would “suffer the permanent consequences” if the Supreme Court did not issue a stay and halt the November 15 decision by Fulton County Superior Court Judge Robert McBurney.
McBurney had ruled the state’s abortion ban was invalid because, when it was signed into law in 2019, United States Supreme Court precedent that was established by Roe v Wade and another ruling had allowed abortion well past six weeks.
Although abortions past six weeks had resumed, some providers said they were proceeding cautiously over concerns the ban could be quickly reinstated.
Cardiac activity can be detected by ultrasound in an embryo’s cells, which will eventually become the heart, at approximately six weeks into a pregnancy. That means most abortions in Georgia are effectively banned at a point before many people know they are pregnant.
The measure was passed by the state legislature and signed into law by Republican Governor Brian Kemp in 2019.
In his ruling, McBurney said the timing – before the US Supreme Court overturned Roe v Wade – made the law immediately invalid. Legislatures exceed their authority when they enact laws that violate a constitutional right declared by the judicial branch. To enact the law, the state legislature would have to pass it again, he wrote.
The state attorney general’s office in a filing with the Georgia Supreme Court blasted McBurney’s reasoning as having “no basis in law, precedent or common sense”.
Plaintiffs’ attorneys defended it in a reply and warned of “irreparable harm” to women if it were put on hold. They also asked the Supreme Court for 24 hours’ notice before issuing any stay to “avoid the potential chaos” of resuming the ban while women waited for an abortion or were in the middle of getting one.
The state’s Supreme Court did not conduct a hearing before issuing its order and plaintiffs’ attorneys said it denied their request for 24 hours’ notice.
The court’s order said seven of the nine justices agreed with the decision. It said one was disqualified and another did not participate.