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Re-watch | Georgia Supreme Court hears arguments on abortion law

The law was struck down by Fulton County Judge Robert C. I. McBurney last year.

ATLANTA — The Georgia Supreme Court is heard arguments Tuesday morning about whether to overturn a Fulton County judge's decision last year throwing out the state's "heartbeat" law that bans abortions at about six weeks.

The law was struck down by Fulton County Judge Robert C. I. McBurney in a ruling that rested on a legal principle known as ab initio - basically, if a law is unconstitutional when passed, it is invalid from the get-go.


Under the principle, that applies even when a law becomes constitutional later - in this case, the Georgia abortion law was unconstitutional under U.S. Supreme Court precedent when it was passed, making it invalid under McBurney's reasoning even though the Supreme Court later overturned the Roe v. Wade precedent, rendering an abortion ban constitutional.

RELATED: Georgia Supreme Court reinstates abortion ban as appeal plays out

The Georgia Supreme Court blocked McBurney's order last year pending an appeal, meaning it has been in effect for the last several months.

"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 their filing last week, attorneys for the state called McBurney's ruling "a wholly unsupported theory that has no basis in law, precedent, or common sense." 

"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.'"

The Georgia Supreme Court session on Tuesday is only for oral arguments. No decision in the case will be delivered until later.

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