In a unanimous decision Wednesday, the state Supreme Court issued a stay against a lower court ruling that overturned the state’s 2019 “heartbeat” abortion ban. The order went into effect immediately, pending an appeal from state officials. The superior court of Fulton County previously overturned the law last week; it had previously been blocked by a federal court until the Supreme Court overturned Roe v. Wade this past summer.
“The State of Georgia’s Emergency Petition for Supersedeas seeking a stay of the order of the Superior Court of Fulton County in [STATE OF GEORGIA v. SISTERSONG WOMEN OF COLOR REPRODUCTIVE JUSTICE COLLECTIVE et al.] is hereby granted,” the court wrote in a one-page order. The decision of the court was unanimous; presiding justice Nels S.D. Peterson was disqualified, and justice Andrew A. Pinson did not participate. The court also dismissed a separate request for an administrative stay.
According to the Atlanta Journal-Constitution, lawyers for the state appealed to the Supreme Court days after the Fulton County court ruling. “The harm to the state is significant and irreparable,” attorneys wrote in their appeal, via the AJC. “Unborn children are at risk every day that the injunction continues.”
The lower court ruling had overturned the law on the basis that it was unconstitutional when it was passed in 2019; in their appeal, state attorneys said that did not matter since the law is constitutional now because of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and sent abortion back to the states. “The Superior Court fundamentally misunderstood the role of courts, which merely interpret law in the course of issuing judgments in individual cases,” attorneys wrote. “Courts do not amend the constitution, and the constitution does not change simply because a court’s view of it changes.”
In the meantime, abortion clinics in Georgia had resumed providing abortion services for women at up to 22 weeks of pregnancy, which was the standard practice before the law was passed. The Feminist Women’s Health Center, an abortion clinic in Atlanta, told the AJC they had no abortions scheduled for Wednesday, but several were scheduled for Saturday in which a fetal heartbeat could be detected.
Last week, Fulton County Superior Court judge Robert McBurney overturned the “Living Infants Fairness and Equality (LIFE) Act,” which bans abortion after six weeks of pregnancy. McBurney declared the law void under Georgia law, citing a provision that declares unconstitutional laws void from the time of their passage, and mandates that the judiciary declares them so.
In 2019, “everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability,” McBurney wrote. Therefore, the LIFE Act “did not become the law of Georgia when it was enacted and it is not the law of Georgia now,” he concluded.
“What does this ruling mean? Most fundamentally, it means that courts — not legislatures — define the law,” McBurney concluded. “If the courts have spoken, clearly and directly, as to what the law is, as to what is and is not constitutional, legislatures and legislators are not at liberty to pass laws contrary to such pronouncements.”