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SisterSong v. State of Georgia

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Post-Roe State Abortion Ban Litigation

SisterSong v. State of Georgia

Filing date: 07.26.2022
This case challenges Georgia’s H.B. 481, which bans abortion after approximately six weeks of pregnancy.

Status: A Georgia state court ruled on September 30 to permanently block the state’s six-week abortion ban, declaring the ban unconstitutional and ruling that abortion is protected under the Georgia constitution’s fundamental right to privacy. On October 2, Georgia’s Attorney General appealed the ruling to the Georgia Supreme Court, which ruled on October 7 to reinstate the ban while the case proceeds at the Georgia Supreme Court.

In SisterSong v. State of Georgia, the Center for Reproductive Rights and its partners filed a state constitutional challenge seeking to block H.B. 481, which bans abortion after approximately six weeks of pregnancy, from taking effect. The lawsuit, filed on July 26, 2022, asserted that the six-week abortion ban violates the Georgia Constitution’s robust protection for the fundamental right to privacy, which is independent of the U.S. Constitution.  

The lawsuit also argued that H.B. 481 is unconstitutional because it clearly violated Roe v. Wade when enacted in 2019, making it void from inception, regardless of the subsequent change to federal law. Georgia’s constitution provides that a law that violates either the state or federal constitution when passed is forever void. 

The Center and its partners first challenged H.B. 481 in Sistersong v. Kemp (2019), shortly after Gov. Brian Kemp signed the ban into law. In 2020, a federal district court blocked the ban from taking effect. But after the U.S. Supreme Court overturned the constitutional right to abortion, the 11th Circuit Court of Appeals lifted the federal district court’s injunction, allowing the ban to take effect on July 20, 2022. 

On August 15, the Superior Court of Fulton County ruled that it lacked jurisdiction to temporarily block H.B. 481 before deciding its constitutionality on the merits, allowing the ban to remain in effect as litigation continued. On October 24–25, the Superior Court heard the parties’ evidence in the trial on plaintiffs’ challenge to H.B. 481. 

On November 15, Judge Robert McBurney of the Superior Court of Fulton County struck down the ban as void and without legal basis since it violated Roe v. Wade when it was enacted in 2019.  

Judge McBurney further found that a subsequent change in federal constitutional law, which happened when the U.S. Supreme Court overruled Roe, does not revive the ban. Instead, if the legislature wishes to ban abortion, it must pass a new law “in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate,” Judge McBurney wrote in his order. 

Just a week later, on November 23, the Georgia Supreme Court granted an emergency stay of the injunction, allowing the ban to take effect once again while the state’s appeal continues. 

On October 24, 2023, the Georgia Supreme Court reversed the lower court’s ruling that the law was void from inception, allowing the ban to remain in effect. The case was returned to the trial court to rule on the remaining claims brought by the plaintiffs that the ban violates Georgians’ rights to privacy and equal protection under the state constitution.

Ban Ruled Unconstitutional by Georgia State Court

The Superior Court of Fulton County ruled on September 30 that Georgia’s six-week abortion ban is unconstitutional and that abortion is protected under the state constitution’s fundamental right to privacy. The ruling permanently blocks the ban, which prohibits abortion before many know they’re pregnant, and allows Georgians to once again access abortion care in the state beyond the earliest weeks of pregnancy.     

“Women are not some piece of collectively owned community property the disposition of which is decided by majority vote,” said Judge Robert McBurney, writing for the majority. “Forcing a woman to carry an unwanted, not-yet-viable fetus to term violates her constitutional rights to liberty and privacy.”  

In its ruling, the court held that:

  • The state constitution’s strong protection of the fundamental right to privacy prohibits political interference with an individual’s abortion decision before viability.
  • The exclusion of mental health from the ban’s narrow medical emergency exception violates equal protection.
  • Another provision of the law giving district attorneys broad access to the medical records of abortion patients also violates Georgians’ right to privacy.

Judge McBurney also wrote:

  • “[F]or many women, their pregnancy was unintended, unexpected, and often unknown until well after the embryonic heartbeat began.  Yet that’s too late under the LIFE Act’s strictures: these women are now forbidden from undoing that life-altering change of circumstances — before they even knew the change had occurred. For these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability.”
  • “Considering the compelling record evidence about the physical, mental, and emotional impact of unwanted pregnancies on the women who are forced by law to carry them to term (as well as on their other living children), the Court finds that, until the pregnancy is viable, a woman’s right to make decisions about her body and her health remains private and protected, i.e., remains her business and her business alone.”
  • “[T[here is an uncomfortable and usually unspoken subtext of involuntary servitude swirling about this debate, symbolically illustrated by the composition of the legal teams in this case. It is generally men who promote and defend laws like the LIFE Act, the effect of which is to require only women — and, given the socio-economic and demographic evidence presented at trial, primarily poor women, which means in Georgia primarily black and brown women — to engage in compulsory labor, i.e., the carrying of a pregnancy to term at the Government’s behest.” 

Read Judge McBurney’s full opinion here.

On October 2, Georgia’s Attorney General filed an appeal of this ruling, asking the Georgia Supreme Court to reinstate the ban.

Center Attorneys: Alice Wang and Cici Coquillette 

Co-Counsel/Cooperating Attorneys: Caplan Cobb LLC, Bondurant Mixson & Elmore LLP, ACLU Reproductive Freedom Project, ACLU of Georgia, and Planned Parenthood Federation of America 

Plaintiffs: SisterSong Women of Color Reproductive Justice Collective, Feminist Women’s Health Center, Planned Parenthood Southeast, Inc., Atlanta Comprehensive Wellness Clinic, Atlanta Women’s Medical Center, FemHealth USA d/b/a carafem, Summit Medical Associates, P.C., Carrie Cwiak, M.D., M.P.H., Lisa Haddad, M.D., M.S., M.P.H., Eva Lathrop, M.D., M.P.H., and Medical Students for Choice 

Timeline:

July 20, 2022 After the U.S. Supreme Court takes away the right to abortion, the 11th Circuit Court of Appeals lifts the federal district court’s injunction against H.B. 481, Georgia’s six-week abortion ban. The ban goes into effect for the first time since it was passed in 2019.
July 26, 2022 The Center and its partners file a new lawsuit (SisterSong v. GA) in the Superior Court of Fulton County, which argues that H.B. 481 violates the Georgia Constitution.
August 15, 2022 The Superior Court of Fulton County refuses to preliminarily block H.B. 481, allowing the ban to remain in effect as litigation continues.
October 24, 2022 The trial challenging H.B. 481 takes place at the Superior Court of Fulton County.
November 15, 2022 Judge Robert McBurney of the Superior Court of Fulton County strikes down H.B. 481 as void and without legal basis, since it violated Roe v. Wade when it was enacted in 2019.
November 23, 2022 Georgia Supreme Court grants emergency stay of the Superior Court injunction, allowing the ban to take effect once again while the state’s appeal continues.
March 28, 2023 The Georgia Supreme Court hears oral arguments in the case.
October 24, 2023 The Georgia Supreme Court issues a ruling allowing H.B. 481 to remain in effect as the legal challenge continues.
September 30, 2024 The Superior Court of Fulton County rules the ban unconstitutional, permanently blocking it, and ruled that abortion is protected under the Georgia constitution’s fundamental right to privacy.
October 02, 2024 Georgia’s Attorney General files an appeal of this ruling, asking the Georgia State Supreme Court to reinstate the ban.
October 07, 2024 The Supreme Court of Georgia issues a ruling staying the trial court decision striking down H.B. 481. The ruling reinstates Georgia’s abortion ban while the appeal proceeds at the Georgia Supreme Court.

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