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Judge considers whether to block Georgia's 'heartbeat' law -- again

Fulton County Superior Court Judge Robert McBurney heard arguments Monday from lawyers for the state and for doctors and advocacy groups who filed a lawsuit.

ATLANTA — A judge is considering whether Georgia officials should once again be prohibited from enforcing the state’s restrictive abortion law while a legal challenge against it is pending.

Fulton County Superior Court Judge Robert McBurney heard arguments Monday from lawyers for the state and for doctors and advocacy groups who filed a lawsuit challenging the law. He said he needed to think about the issues but that he would issue a ruling soon.

“I understand that this is something that needs immediate attention and I will give it that,” McBurney said at the end of the hearing.

The hearing focused on whether the judge has the power to block the law temporarily while the litigation plays out and whether the law was invalid from the start because it violated the U.S. Constitution and U.S. Supreme Court precedent when it was enacted.

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Georgia’s law was passed by state lawmakers and signed by Republican Gov. Brian Kemp in 2019 but it had been blocked from taking effect. The 11th U.S. Circuit Court of Appeals allowed the state to begin enforcing it last month, just over three weeks after the U.S. Supreme Court overturned Roe v. Wade, which had protected the right to an abortion for nearly 50 years.

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. That means most abortions in Georgia are effectively banned at a point before many women know they are pregnant.

The law 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 new lawsuit challenging Georgia’s law was filed by doctors and advocacy groups July 26, less than a week after the 11th Circuit allowed the law to take effect.

The doctors and advocacy groups are asking the judge to block state officials from enforcing the ban on abortions at about six weeks, as well as another provision of the law that allows prosecutors to examine medical records without a subpoena, while the litigation is pending.

The lawsuit argues that the law violates the “fundamental rights to liberty and privacy” under the Georgia Constitution, which it argues are much broader than those granted by the U.S. Constitution. It also asserts that the law is invalid because it was in violation of the U.S. Constitution when it was signed and Georgia case law says that means it must be reenacted to become effective.

The state argues that the judge cannot stop the enforcement of the law while the challenge to its constitutionality plays out. The state also rejects the idea that the law was unconstitutional when it passed arguing that the recent Supreme Court ruling overturning those precedents that made it unconstitutional were themselves wrong.

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