Georgia Supreme Court orders state's six-week abortion ban back into effect

Update: The Georgia Supreme Court put Judge Robert McBurney's ruling on hold pending appeal. Also: Texas has an execution scheduled for Tuesday.

Update, 2:00 p.m. Oct. 7: The Georgia Supreme Court on Monday, Oct. 7, put the state’ six-week abortion ban back in effect as of 5 p.m. Oct. 7, granting Republican Attorney General Chris Carr’s request for a stay pending appeal. Justice John Ellington — the sole justice not appointed by a Republican governor — was the sole justice who dissented.

The court did, however, keep the provision providing access to “health records” to district attorneys where an abortion is performed or where the person who received an abortion resides blocked during the appeal.

In Ellington’s dissent, he wrote, “[T]he State fails to show any reason for urgency that goes beyond their underlying arguments in favor of allowing the State to prevent women from deciding whether to terminate a pregnancy after embryonic cardiac activity can be detected and before a fetus is viable” — questions, he noted, that would be the purpose of the appeal.

The six-justice majority provided no explanation for their decision.

Original article:

On Monday, a trial judge in Georgia blocked the state’s roughly six-week abortion ban from being enforced, finding that the felony criminal abortion ban in the state’s law violates a pregnant person’s rights to liberty and privacy under Georgia’s Constitution.

The decision from Fulton County Superior Court Judge Robert McBurney was rightly celebrated by opponents of the ban, but the questions now are whether — and, if so, for how long — that ruling will stand. State Republican officials have already said they will appeal.

The most immediate questions: Will the state seek an emergency stay to enforce the ban during that appeal? And, if so, will the Georgia Supreme Court grant it?

“Women are not some piece of collectively owned community property the disposition of which is decided by majority vote,” McBurney wrote in an at-times acerbic opinion that harshly questioned aspects of a prior ruling in the case from the Georgia Supreme Court.

It is on that point that I want to focus. Although McBurney’s decision Monday was strong and presented an ambitious vision of protection for women’s rights, as he detailed it, it is important that the landscape here be fully described.

The Living Infants Fairness and Equality Act, or LIFE Act, passed in 2019, was initially blocked by a federal court in 2020 because it clearly conflicted with the constitutional right to an abortion under Roe v. Wade. After the U.S. Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health Organization, however, that injunction was lifted, leading to new litigation.

That led to McBurney’s original ruling. On Nov. 15, 2022, he found that the six-week ban was void because it was unconstitutional under the federal Constitution when it was passed. Because of that, he found that it was void ab initio — basically, it was never law — and blocked enforcement of the LIFE Act’s abortion ban.

Relevant to Monday’s decision, within a week of McBurney’s 2022 ruling, the state went to the Georgia Supreme Court, asking for an emergency stay of his ruling pending the state’s appeal. On Nov. 23, 2022, the Georgia Supreme Court granted that stay — allowing the ban to be enforced again, just eight days later.

It wasn’t until 11 months after that that the Georgia Supreme Court ruled on the appeal, holding that McBurney was wrong and that the law was not void ab initio — keeping the ban in effect. (There is much more to be written about the disagreement between the Georgia Supreme Court and McBurney on this point, but, for now, I want to focus on this timeline question, because it’s important and matters to people seeking abortion care now.) Only one judge, Justice John Ellington, dissented. He is the only of the court’s nine justices not to be appointed by a Republican governor.

The six-week ban was in effect during all of that time, with the Georgia Supreme Court sending the case back to McBurney for consideration of the challengers’ other claims.

Now, McBurney has ruled again. And the ban is blocked again, along with another provision of the LIFE Act and a law providing access to “health records” to district attorneys where an abortion is performed or where the person who received an abortion resides. They are unenforceable. For now.

But, there will be an appeal to the Georgia Supreme Court — and there could be a similar emergency stay request from the state’s Republican leaders that could, again, upend the right of people in Georgia to obtain an abortion after six weeks.

Neither Republican Gov. Brian Kemp’s press secretary nor Republican Attorney General Chris Carr’s communications director responded to a question from Law Dork about whether they will be seeking an emergency stay.

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Texas’s Tuesday scheduled execution

On Tuesday evening, Texas is scheduled to kill Garcia Glen White.

Convicted of the murders of twin 16-year-old sisters in 1989, White also admitted to killing their mother, as well as two other killings.

White has three petitions for review pending at the U.S. Supreme Court, primarily related to a claim of intellectual disability — specifically how Texas considers such claims, the Eighth Amendment implications of an intellectual disability claim filed after the one-year statute of limitations under federal law, and whether lower courts addressed potential lawyer conflict questions in White’s case properly. Requests for a stay of execution accompany each petition.

If Texas goes forward with White’s execution, it will be Texas’s fifth execution this year and the 19th execution in America in 2024.