State constitutional challenge to Georgia abortion law filed

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 in the case.

The lawsuit was filed in state superior court rather than federal court.

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 Georgia Constitution provides particularly robust protection for the fundamental right to privacy that doesn’t allow political interference with a person’s deeply personal decision whether to continue or end a pregnancy, the lawsuit says.

The law also was invalid from the start because it violated federal constitutional precedent when it was passed, the suit says.

The lawsuit also challenges a provision that lets district attorneys examine medical records.

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.

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

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 person with a regular four-week menstrual cycle, the law’s cutoff point falls only two weeks after the first missed period.

But many people have irregular menstrual periods because of health conditions, contraceptive use or breastfeeding, and some people mistake bleeding common in early pregnancy for a period, the lawsuit says.

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 that 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 anomalies likely to cause death of the fetus or child presumes a doctor can predict those issues perfectly.

“But medicine is not so clear cut, and a physician cannot predict exactly how long a baby will survive, or how much they may suffer before they die,” the suit says.

“Moreover, a physician cannot be sure that their medical judgment would not later be second-guessed by a prosecutor or judge.”