A Georgia judge on Wednesday agreed to vacate and reissue a decision that allowed the state's 20-week abortion ban (HB 954) to take effect, so that lawyers for three OB-GYNs challenging the law could appeal the ruling, the AP/Sacramento Bee reports (Brumback, AP/Sacramento Bee, 5/25).
Legal background
The ban was scheduled to take effect on Jan. 1, 2013. In 2012, the American Civil Liberties Union (ACLU) of Georgia filed a lawsuit on behalf of three OB-GYNs against the law. The lawsuit stated that the ban violates women's rights to due process, equal protection and privacy under the Georgia Constitution (Women's Health Policy Report, 12/3/12).
The suit also argued that the law's exceptions are too narrow. According to the lawsuit, a physician could still risk being sentenced to prison if he or she provides medical care "in accordance to the best medical judgment" (AP/Sacramento Bee, 5/25). In addition, the suit argued that the medical emergency provision would force a woman with a high-risk pregnancy to wait until she is in immediate danger to qualify for an abortion (Women's Health Policy Report, 12/3/12).
In December 2012, Fulton County Superior Court Judge Doris Downs issued a preliminary injunction against the law (Women's Health Policy Report, 1/3/13). However, according to the Atlanta Journal-Constitution, a different Fulton County Superior Court judge in October 2015 dismissed Downs' injunction and the overall legal challenge (Rankin, Atlanta Journal-Constitution, 5/25).
That judge, Kimberly Esmond Adams, ruled that the plaintiffs' lawsuit is prohibited under sovereign immunity, which bars the state and the state's agencies from being sued when acting in their official role. Sovereign immunity stands unless the Georgia General Assembly specifically waives that right.
Adams in her ruling urged an appeal of her decision, writing that she "did not arrive at this conclusion with haste or ease." She said an appeal, which had to be filed within 30 days of her ruling, could "address any existing inadequacies in our existing law" (AP/Sacramento Bee, 5/25). She added, "As evidenced by the continued debate throughout this nation, issues related to reproductive and abortion rights often involve competing interests, concerns and ideologies ... (T)he court is mindful of the grave issues raised by the above-styled case and troubled by the realities of this matter" (Atlanta Journal-Constitution, 5/25).
The law has been in effect for about six months since Adams' ruling.
ACLU never notified about ruling
According to the AP/Bee, ACLU said it was never notified about Adams' ruling and therefore was not able to appeal her decision before the 30-day deadline. On March 10, ACLU lawyers learned from another lawyer uninvolved in the lawsuit that Adams had dismissed the case. ACLU then contacted Adams' staff to obtain copies of the decision. A week later, ACLU submitted a request for Adams to vacate her original ruling and reissue the decision so that ACLU attorneys could file an appeal within the deadline (AP/Sacramento Bee, 5/25). The state did not oppose the request (Atlanta Journal-Constitution, 5/25).
Louise Melling, deputy legal director of ACLU, also said the OB-GYNs in the lawsuit were never notified that the law had taken effect. In a court filing, ACLU wrote that the Georgia Department of Public Health (DPH) in a February 2014 letter to abortion providers in the state noted that the law was still blocked by the 2012 injunction, meaning that providers did not need to report their compliance with the law. In December 2015, DPH issued another letter stating that the injunction was still in place and the lawsuit ongoing.
Nancy Nydam, a spokesperson for DPH, said the letter issued in 2015 "was based on the best information available at that time." According to Nydam, DPH has not released any further notifications to providers since Adams' decision in October 2015.
Latest developments
Adams held a hearing on the matter on Wednesday and agreed to the request. According to Adams and an ACLU lawyer, the parties may not have been informed of the ruling because of a new electronic filing system installed the same month that Adams issued her decision.
Jennifer Dalven, director of ACLU's Reproductive Freedom Project, said ACLU intends to appeal Adams' ruling immediately and request that the law be blocked while the lawsuit continues. According to the AP/Sacramento Bee, if the state Supreme Court agrees to consider the case, it will examine the issue of sovereign immunity. If the Georgia Supreme Court determines that that principle does not apply in the case, the high court will send it back to Adams so she can weigh the merits of the case (AP/Sacramento Bee, 5/25).
