McBurney ruled the state's abortion ban was invalid because when it was signed into law in 2019, U.S. Supreme Court precedent that was established by Roe v. Wade and another ruling had allowed abortion well past six weeks.
The decision immediately prohibited enforcement of the abortion ban statewide. The state appealed and asked the Georgia Supreme Court to put the decision on hold while the appeal moved forward.
Although abortions past six weeks had resumed, some abortion providers said they were proceeding cautiously over concerns the ban could be quickly reinstated.
Georgia’s ban first took effect in July, after the U.S. Supreme Court overturned Roe v. Wade. It prohibits 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 around six weeks into a pregnancy. That means most abortions in Georgia are effectively banned at a point before many people know they are pregnant.
The measure was passed by the state Legislature and signed into law by Republican Gov. Brian Kemp in 2019. In his ruling, McBurney said the timing — before the U.S. Supreme Court overturned Roe v. Wade — made the law immediately invalid. Legislatures exceed their authority when they enact laws that violate a constitutional right declared by the judicial branch. To enact the law, the state Legislature would have to pass it again, he wrote.
The state attorney general's office in a filing with the Georgia Supreme Court blasted McBurney's reasoning as having “no basis in law, precedent, or common sense.”
Plaintiffs' attorneys defended it in a reply and warned of “irreparable harm” to women if it were put on hold. They also asked the high court for 24 hours notice before issuing any stay to “avoid the potential chaos” from resuming the ban while women waited for an abortion or were in the middle of getting one.
The state Supreme Court did not conduct a hearing before issuing its order, and plaintiffs' attorneys said it denied their request for 24 hours notice.
The high court's order said seven of the nine justices agreed with the decision. It said one was disqualified and another did not participate.