Georgia Supreme Court Upholds Heartbeat Law, reversing lower court decision

By Dave Andrusko

On a near unanimous 6-1 vote, the Georgia Supreme Court this morning reversed a lower court ruling that would have blocked the state’s Living Infants Fairness and Equality (LIFE) Act from taking effect. The law, commonly referred to as the ‘Heartbeat Bill,” allows abortion only until a fetal heartbeat can be detected, around six weeks.             

On November 15, Fulton County Superior Court Judge Robert McBurney ruled that the law was “unequivocally unconstitutional” because it was enacted in 2019 when Roe v. Wade was still in effect. The state Supreme Court allowed enforcement of the ban to resume, however, while it considered an appeal of Judge McBurney’s decision.

“Today’s victory represents one more step towards ending this litigation and ensuring the lives of Georgians at all ages are protected,” pro-life Gov. Brian Kemp said in a statement. Chris Carr, the attorney general of Georgia, added, “We are pleased with the court’s decision and will continue to defend the constitutionality of Georgia’s LIFE Act.”

Writing for the majority in State of Georgia v. SisterSong Women of Color Reproductive Justice Collective et al, Justice Verda Colvin said, “When the United States Supreme Court overrules its own precedent interpreting the United States Constitution, we are then obligated to apply the Court’s new interpretation of the Constitution’s meaning on matters of federal constitutional law.”

According to the Associated Press’s Sudhin Thanawala

McBurney had said the law was void from the start, and therefore, the measure did not become law when it was enacted and could not become law even after the U.S. Supreme Court overturned Roe v. Wade last year.

State officials challenging that decision noted the Supreme Court’s finding that Roe v. Wade was an incorrect interpretation of the U.S. Constitution. Because the Constitution remained the same, Georgia’s ban was valid when it was enacted, they argued.

In Tuesday’s ruling, Colvin said McBurney’s decision was based on the “faulty premise”–that the U.S. Supreme Court changed the meaning of the U.S. Constitution when it overruled Roe.

The court does not have that power, she said, so the Constitution “means today what it meant when” Georgia’s ban was enacted in 2019.

The Georgia Supreme Court returned the case to Judge McBurney to rule on the claim that the Georgia Constitution provides for a “right to privacy” that would render the abortion law unconstitutional.