By Dave Andrusko
Representing Gov. Brian Kemp, on Friday, the office of Georgia’s pro-life Attorney General Chris Carr asked the Georgia Supreme Court to immediately reverse the November 15th ruling by a Superior Court judge that blocked enforcement of the state’s Heartbeat Bill which would protect unborn children from abortion once an unborn child’s heartbeat can be detected.
Covering the story for the Associated Press, Sudhin Thanawal a wrote
“Fulton County Superior Court Judge Robert McBurney’s decision earlier this week was ‘remarkable’ and relied on a ‘wholly unsupported theory that has no basis in law, precedent, or common sense,’ the state attorney general’s office said in court documents filed with the Georgia Supreme Court.
It asked the high court for an order immediately putting McBurney’s decision on hold while the justices take more time to consider an appeal. Such an order would restore the state’s ban on abortion, which started roughly six weeks into pregnancy.
Georgia Solicitor General Stephen Petrany wrote “The harm to the state is significant and irreparable … Unborn children are at risk every day that the injunction continues. …This Court should stay the lower court’s decision now, without waiting to overrule it months down the line, while untold numbers of unborn children suffer the permanent consequences.”
Judge McBurney’s 15-page-long decision was a real head scratcher. Maya T. Prabhu, of The Atlanta Journal-Constitution, wrote
Attorneys representing abortion rights activists and providers, last month argued that when the law passed in 2019, Roe v. Wade — the 1973 U.S. Supreme Court ruling that guaranteed a right to an abortion until a fetus was viable outside the mother’s body — was the law of the land and state law does not allow the Legislature to enact statutes that violate the law.
A ruling by the 11th U.S. Circuit Court of Appeals in July allowed Georgia’s 2019 abortion law to be enforced. The U.S. Supreme Court’s June decision to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization paved the way for Georgia’s law to take effect.
McBurney said that just because the Dobbs decision overturned the nearly 50-year-old Roe decision, it did not retroactively make the 2019 passage of Georgia’s abortion law legal.
Thanawala, quoting from the decision, wrote that McBurney declared that two key parts of the law “were plainly unconstitutional when drafted, voted upon, and enacted” because the state passed the restriction on the procedure before the Supreme Court overturned Roe’s federal abortion protections.
But in their appeal, attorneys for the state said it doesn’t matter whether the law was not constitutional when it passed the General Assembly in 2019. It is “now in line with the law as established by the Dobbs decision,” according to Prabhu.
“The Superior Court fundamentally misunderstood the role of courts, which merely interpret law in the course of issuing judgments in individual cases,” attorneys wrote in the appeal. “Courts do not amend the constitution, and the constitution does not change simply because a court’s view of it changes.”