When rules change governing abortion, either by a legislative act or court ruling, it often makes national headlines.
That didn’t happen when Fulton County Superior Court Judge Kimberly Esmond Adams issued her decision on Oct. 30.
Her ruling effectively changed how late women in Georgia could terminate their pregnancy — from 24 weeks to 20. And the response was crickets.
“All we can tell you is that no one seems to have known about this,” said Jennifer Dalven, director of the ACLU’s reproductive freedom project.
The group filed a lawsuit challenging Georgia’s law banning abortions after 20 weeks in 2012, the same year Gov. Nathan Deal signed it into law. At the time, the group won an injunction that kept the ban from being fully enforced while the case was in court.
The group didn’t learn the judge sided with Georgia’s attorney general and dismissed its case in 2015 until March — four months later.
“We never received a copy of the decision. In fact, it appears the only folks who knew about it were the AG’s office, and they don’t seem to have told anyone,” Dalven said. “They didn’t tell doctors. They didn’t tell hospitals. They didn’t tell clinics, and, most importantly, they didn’t tell women who may need this care.”
Dalven said a letter that the Georgia Department of Public Health sent to clinics in December, six weeks after the decision, even states that the lawsuit is ongoing and the injunction is still in place.
According to what the ACLU said, there was about a four-month period in which abortions after 20 weeks were prohibited and doctors didn’t know.
The attorney general’s office wouldn’t comment, but in court documents the state confirms it received the October decision in early November.
In that four months, the ACLU missed its chance to appeal the decision to a higher court. Dalven said they’re now trying to recuperate that right. The organization had 30 days after the decision to appeal.
“This law is blatantly unconstitutional. And it is today denying women care that their doctors say they need and is constitutionally protected. That’s why it’s important to get this case back on track,” Dalven said.
What makes the state ban unconstitutional, according to the ACLU, is that it contradicts Roe v. Wade. Using the right to privacy, the 1973 U.S. Supreme Court decision carved out a protection for abortions up to about 24 weeks.
Georgia’s bill, called the Pain Capable Unborn Child Protection Act, rests on the idea that fetuses feel pain before then, as early as 20 weeks.
Chapman University law professor John Eastman defended a similar 20-week ban in Arizona as constitutional. He said if the fetus feels pain, then that’s human life.
“And that triggers all sorts of protections under the Supreme Court, even pro-abortion decisions like Roe v. Wade, which very clearly say, ‘If we get to the point where we know this is a human being, of course our decision would have to come out differently,’” Eastman said.
More than a dozen states have passed 20-week abortion bans based on that logic; South Carolina lawmakers voted one through last week. Evidence for this fetal pain is disputed by the American Congress of Obstetricians and Gynecologists.
Before the case against Georgia’s ban was dismissed, the state was one of the last places in the South where women could get the procedure later in term.
In a study about the ban’s potential impact, professor Sarah Roberts at the University of California, San Francisco, looked at the patients using Georgia’s clinics.
“What was notable was that women receiving care after 20 weeks in Georgia were from throughout the entire South, the Midwest and Northeast,” she said.
Roberts found out-of-state patients accounted for half of the abortions performed between 20 and 24 weeks in pregnancy.
Options for those women may be even more limited now, Roberts said.
“If Georgia is no longer providing those services, then Florida is the only state south of Maryland and east of Colorado where women can receive that care,” Roberts said.
Whether women should receive this care in Georgia wasn’t the question that Judge Esmond Adams considered in Fulton County Superior Court last October.
She dismissed the case on grounds of sovereign immunity — a debated law that protects the state from litigation.
Sovereign immunity has protected the state in a recent Georgia Supreme Court case involving students living in the country without legal permission who qualified for the president’s Deferred Action for Childhood Arrivals program. They sued the Board of Regents claiming their protected status guaranteed them in-state tuition.
A phrase in Georgia’s constitution may prevent sovereign immunity from being applied in cases where a law’s constitutionality is being questioned, said visiting Emory law professor Fred Smith. That would include lawsuits like the ACLU’s.
“We don’t know that yet because this is something that is still being tested out in lower courts,” Smith said. “That’s something the Georgia Supreme Court hasn’t answered.”
At a hearing Wednesday, the ACLU will argue that the October decision should be set aside, since they say they didn’t receive proper notice. That would clear the way for a new ruling, which the group could then appeal.
The state, meanwhile, rebuffs the ACLU’s claim. Its court brief said the group can’t prove the court didn’t try to mail them the ruling.
WABE legal analyst Page Pate said the distinction matters.
“What’s important is really not whether the parties got the notice, but whether or not the court sent out the notice in some way,” Pate said.