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State wants GA Supreme Court to reinforce abortion ban as appeal plays out

Attorneys for Gov. Kemp filed the motion Friday. They want the state supreme court to block a lower court's order.

ATLANTA — Attorneys representing Gov. Brian Kemp asked the Supreme Court of Georgia on Friday to temporarily block a lower court's order, allowing the state's law banning abortion around six weeks to be enforced again.

The motion, filed Friday afternoon, asks the state supreme court to stop an order from Fulton County Superior Court Judge Robert McBurney earlier this week that voided the abortion ban.

The state already announced that it would seek to appeal the ruling. Now, the state is requesting McBurney's order be blocked as the state supreme court considers the appeal.

"This Court should stay the lower court’s decision now, without waiting to overrule it months down the line, while untold numbers of unborn children suffer the permanent consequences," a portion of the state's motion reads.

RELATED: With Georgia's abortion law overturned, doctors move ahead with more abortions

Georgia's abortion ban was passed in 2019 and took effect in July after the U.S. Supreme Court overturn Roe. v. Wade. Under state law, most abortions were banned once "cardiac activity" is detected with some exceptions, including in cases of rape and incest. 

McBurney ruled the "heartbeat" provision of Georgia's ban was unconstitutional earlier this week. The ban, he said, was unconstitutional when it was passed because of protections provided by Roe v. Wade. Therefore, it could never be a law.

The ruling, however, left it open for state lawmakers to pass another ban.

"Those provisions exist on paper only," McBurney said in his order overturning the ban. "They have never had legal effect in Georgia. They were and are void and must be re-enacted in our post-Roe world if they are to become the law of Georgia."

In Friday's filing, attorneys for the state called McBurney's ruling "a wholly unsupported theory that has no basis in law, precedent, or commonsense." 

"Prior judicial precedents, when they are overruled, are no law at all," the state said. "When the Supreme Court overruled Roe, 'the effect [was] not that the former decision was bad law, but that it was never the law.'"

It's unclear when the state supreme court could issue a ruling on whether to block McBurney's order. 

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