Judge hears arguments in state constitutional challenge of abortion ban

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Fulton County Superior Court Judge Robert McBurney heard two days of arguments in the case but outlined early on that a judgment would not come until after the Nov. 8 midterm election.

“I appreciate how important this issue is to many, many people,” he said Monday. “...And for some people, it is very easily distilled into black or white — it's the right to life, it's a woman's right to choose. But as many of you in this room know, it's more complicated than that.”

House Bill 481, Georgia’s 2019 law which bans most abortions once fetal cardiac activity is detected — usually around six weeks of pregnancy — was tied up in court for more than three years. 

But after the U.S. Supreme Court dissolved federal abortion protections this summer, a federal appeals court ruled that the ban is lawful and could immediately take effect.

It’s implementation decreased the time a pregnant person in Georgia could seek an abortion from around 20 weeks to 6 six weeks — often before a person knows they’re pregnant. It includes limited exceptions for rape or incest if a police report is filed, and a medical emergency that threatens the life of the mother.

Shortly after the law went into effect, abortion rights advocates and providers filed the new state constitutional challenge on the basis that the law violates the right to privacy. The state attempted to “cancel or delay” the trial until after the consequential midterm election, but McBurney shot down the state’s request.

“I set an aggressive schedule because this is an issue that needs attention now and not in three months,” he said on the first day of the trial. “It probably needed attention three months ago, but here we are.”

Right to privacy in question

The most recent challenge of Georgia’s strict abortion law centers on the state’s steadfast right to privacy under its constitution. 

Legal experts say that Georgia’s privacy protections are more extensive than even those at the federal level and anticipated early on that the abortion law would be challenged on those grounds.

The American Civil Liberties Union filed the lawsuit in state court in July on behalf of abortion rights advocates and providers. At the Fulton County courthouse this week, its lawyers argued that the law violates a patient’s right to privacy to make personal medical decisions in conjunction with their doctors. 

The new lawsuit also argues that a provision that allows prosecutors to request medical records from health care providers and women who live in their jurisdiction is another infringement on privacy.

“The state's position is that as soon as a woman becomes pregnant, her rights evaporate,” Julia Kaye, an attorney with the ACLU outside the courthouse after the first day wrapped up. “And Gov. Kemp and the General Assembly have a free pass to subject her to the immense intrusion and medical risks of pregnancy, labor and delivery against her will. We think that’s wrong.”’

Lawyers for the plaintiffs also argue that since the law was unconstitutional at the time it was passed in 2019, it’s void and that lawmakers would need to go back and reenact the law in a post-Dobbs world — and pose the question to voters.

Attorneys for the state pushed back that the right to privacy isn’t as concrete since the embryo could be considered a nonconsenting “third party.”

State Solicitor general Stephen Petrany argued that the “personhood” provision of the new law — which gives legal rights to an embryo or fetus at any stage of development — usurps the pregnant person's right to privacy.

“There are a lot of reasons why a privacy right might not be implicated but the one that’s absolutely clear is if it’s affecting some third party, and that’s what the General Assembly decided, is that this is affecting a third party, and they want to protect that third party,” he said. "And to us, that’s really just the end of the case."

Much of plaintiffs’ examples of harm to pregnant people caused by the law are situationally specfic — like a victim of sexual assault that could not safely file a police report or a pregnant person threatening suicide. 

The state argued these specific “edge scenarios” are too infrequent to justify a facial challenge of the law itself. 

Caption

Surrounded by supporters, Gov. Brian Kemp signs House Bill 481, the "heartbeat bill," setting the stage for a legal battle as the state attempts to outlaw most abortions after about six weeks of pregnancy.

Credit: BOB ANDRES / THE ATLANTA JOURNAL-CONSTITUTION

Dueling doctors give testimony in court

Although the challenge to the law centers around privacy concerns, the testimony was almost entirely centered on potential negative consequences of the law. Plaintiffs used the two-day trial to paint a picture of the dire circumstances for pregnant people in Georgia after the implementation of the near-total six-week ban.

Plaintiff’s witness Dr. Carrie Cwiak, an obstetrician-gynecologist and professor at Emory University, described the scene of events that plays out in her practice when she tells patients she can’t provide them abortion-related care.

“It's upsetting,” she said on the stand. “It's emotional. They get mad. It’s hard for them to understand why I can’t provide medical care for them. They often wonder aloud to me in that instance what they're going to do.”

Georgia’s maternal mortality rate consistently ranks among the highest in the country — particularly for Black women. Cwiak argued during the case that for many women, it’s safer to have an abortion than carrying a pregnancy to term based on the preexisting conditions or risks involved.

A state’s witness, Dr. Ingrid Skop, an obstetrician-gynecologist associated with the Charlotte Lozier Institute — an anti-abortion organization — disagreed during her testimony.

“I believe, based on my analysis of the data, that an abortion is more risky to a woman than carrying a child to term,” she said. “It's frequently used as an excuse — we need abortion to lower our maternal mortality rate — and I would say that's analogous to saying we need to take away everyone's cars to lower deaths from auto accidents.”

Georgia doctors lamented over the course of the trial that HB 481 creates numerous obstacles to providing patient care and in some cases prevents any care at all.

One significant criticism of Georgia’s abortion-related care rules is that life-threatening mental health conditions, such as threat of suicide or self harm, are not considered an exception to the six-week timeline.

“The idea that we're going to exclude psychiatric illness, which is a medical illness to me, is just an enormous injustice and will result in women dying,” said Dr. Samantha Meltzer-Brody, chair of the Department of Psychiatry at the University of North Carolina.

Medical professionals have long raised red flags about the unclear language included in the law that leaves a lot up for interpretation and criminal penalties for doctors who provide abortion-related care outside the confines of the law adds fear of arrest.

Dr. Martina Badell, director of the Emory Perinatal Center, treats pregnant people who are experiencing multifetal pregnancies. But under the new law, patients who may need to undergo a fetal reduction to reduce risks of complications, can’t undergo the procedure within Georgia, she said.

“It makes us feel hand-tied,” Badell said on the stand. “Normally, the patient's interest and her desires for management of her pregnancy align with us providing evidence-based medical care. And in some situations now, we may counsel and say that 'That is standard of care and that you should have this option. But I'm sorry, it's not clear we can provide that for you here in Georgia.'”

North Carolina-based maternal fetal specialist Dr. Jeffery Wright, a state’s witness, disagreed with the stakes that the law adds to a doctor’s job.

“This law specifically states that it's the judgment of the physician involved regarding whether or not there is a risk to the woman's life or endangerment to her to an organ system,” he said.

But even McBurney was quick to point out the severity of the consequences of making the wrong decision under the Georgia law which puts doctors at risk of facing a felony charge.

McBurney said due to scheduling, there will not be a ruling on the case until after the midterm election.