State constitutional challenge to Georgia abortion law filed

Posted at 2:49 PM, Jul 26, 2022
and last updated 2022-07-26 15:40:34-04

ATLANTA (AP) — Abortion providers and advocacy groups filed a new lawsuit Tuesday challenging Georgia's abortion law based on privacy protections in the state Constitution.

The law passed in 2019 effectively bans most abortions about six weeks into a pregnancy, before many women know they're pregnant. A federal judge ruled it unconstitutional and blocked it, but a federal appeals court last week allowed it to take effect after the U.S. Supreme Court overturned Roe v. Wade, which had protected the right to an abortion for nearly five decades.

“SisterSong and our partners have been in the fight against Georgia’s six-week abortion ban from the beginning, and today we are sending a clear message that we’re not giving up,” said Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, the lead plaintiff.

Lawyers with the American Civil Liberties Union, Planned Parenthood and the Center for Reproductive Rights filed the lawsuit on behalf of Georgia doctors and advocacy groups. It was filed in state superior court rather than federal court where the previous challenge had been filed.

The law “infringes Georgians’ fundamental right under the Georgia Constitution to be free from unwarranted State interference with their ‘life, . . . body, and health’ — a liberty interest that inherently encompasses an individual’s decision whether to carry a pregnancy to term,” the suit says.

The law bans most abortions once a “detectable human heartbeat” is present. Cardiac activity can be detected by ultrasound in cells within an embryo that will eventually become the heart as early as six weeks into a pregnancy.

It includes exceptions for rape and incest, as long as a police report is filed, and allows for later abortions when the mother’s life is at risk or a serious medical condition renders a fetus unviable.

The suit asks that a judge declare that the Georgia Constitution’s protection for liberty and privacy encompasses a right to abortion. It also seeks to strike down parts of the law, to remove the exclusion for psychiatric illness, to strike down a requirement for a police report for incest and rape exclusions and to restrict a district attorney's ability to examine medical records without a subpoena.

Julia Kaye, an ACLU staff lawyer, argued the plaintiffs have a much better chance of winning under Georgia law despite the U.S. Supreme Court decision, saying the state constitution “is highly protective of an individual’s right to be free from political interference with their body, health and life.”

Attorney General Chris Carr, a Republican seeking reelection this year, vowed to defend the law.

“We are currently reviewing this filing and we will uphold our constitutional duty, as we do with all lawsuits against the state," his spokesperson, Kara Richardson, told reporters.

Other supporters were more dismissive, with Cole Muzio, president of the anti-abortion Frontline Policy Council saying the ACLU and other groups that brought the case are posturing for donors.

“The ACLU is lighting their money on fire,” Muzio wrote on social media. “They have no case. No argument. This pathetic attempt to please fringe activists and donors is both laughable and sad.”

The suit argues that an effective ban around six weeks means some women won’t learn they are pregnant until it is too late to get an abortion in Georgia.

For a woman with a regular four-week menstrual cycle, the law's cutoff point falls only two weeks after the first missed menstrual period. The lawsuit says many women have irregular menstrual periods and may not even get that much warning.

The suit also argues that it is unfair and medically risky to make a woman who is miscarrying wait until fetal cardiac activity has ceased to get an abortion.

“Under this definition, a patient suffering a miscarriage would be able to access medical care to empty her uterus only if the process of pregnancy loss has already ended embryonic/fetal cardiac activity,” the suit says.

The lawsuit refutes the law's reasoning that there have been medical advances showing that “unborn children are a class of living, distinct persons,” saying embryos at six weeks are neither living nor distinct. It also says the early deadline presents challenges for women who have to travel to obtain an abortion and “compels patients to decide quickly how to proceed with their pregnancy — within just hours or days,” cutting off their time to reflect or consult with others.

The suit says the law forces patients experiencing a pregnancy-related mental health crisis to continue pregnancy and go through childbirth.

“A psychiatric illness is no less of a medical condition than a physical illness — and suicide is a leading cause of maternal death,” the suit says.

The law’s exception to allow abortions for rape and incest after a police report is impractical, the suit says, adding that the exception to allow abortions for certain birth defects likely to cause death presumes a doctor can predict those issues perfectly.