Abortion providers, relieved by halt to Georgia ban, are wary of looming appeal

ATLANTA — After a judge in Georgia ruled Tuesday that the state’s ban on abortion after six weeks was unconstitutional, providers around the state who had halted access to abortion services after fetal cardiac activity was detected are resuming access to those services.

“This is a huge relief to our patients, to our providers and to our staff on the frontlines who have been dealing with the impact of this ban for the last few months,” Amy Kennedy, vice president of external affairs at Planned Parenthood Southeast, told Yahoo News.

On Tuesday, Fulton County Superior Court Judge Robert McBurney determined that the so-called fetal heartbeat law, passed by Georgia’s Republican House and Senate in 2019, was void from the beginning. The law, H.B. 481, banned abortions when the state determined a fetal heartbeat could be detected, which is typically around six weeks, and Gov. Brian Kemp implemented it after the Supreme Court’s reversal of Roe v. Wade in June.

McBurney ruled that since the ban was unconstitutional at the time it was passed, it was also invalid after the Supreme Court overturned Roe v. Wade.

“At that time, the spring of 2019, everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability,” McBurney wrote. Georgia’s Constitution prohibits the Legislature from passing laws that violate federal constitutional precedent. “If the legislature wishes to ban abortion, it must pass a new law,” the judge continued.

Melissa Grant, chief operations officer of Carafem, which operates a national network of abortion providers with a clinic in Georgia, told Yahoo News that the latest ruling, which became effective immediately, is a “big deal.”

“For people who find themselves pregnant in Georgia and in many of the surrounding states, due to the impact of abortion bans across the South, this means a bit of a reprieve in terms of oftentimes traveling great distances to find a health care option that they want and that they frankly deserve,” she said.

McBurney’s decision stems from a complaint filed in Fulton County in June. A group of advocates, organizations and physicians providing reproductive health services in Georgia challenged the law in court, after the 11th Circuit Court of Appeals ruled that H.B. 481 — which had been blocked by a lower federal court when it was passed — could finally go into effect after Roe v. Wade was overturned.

Providers say they’ve been navigating the confusing aftermath of the law’s implementation while still trying to assist people seeking abortion services. For many providers and women seeking such services, there was little time to determine the best course of action upon learning that the patient was pregnant.

“The issues that lead to people choosing to have an abortion are oftentimes complex and intersectional,” Grant said. “Those complex issues have not gone away simply because legislators have determined that they're going to ban abortion. So that meant people continuing to seek options, oftentimes at great expense and difficulty, much further from their own communities. And so we as providers were facing trying to find options for people for whom options were really, really difficult and painful.”

Planned Parenthood Southeast, a network that provides family planning services for people in Alabama and Mississippi and operates four clinics in Georgia, says that before the Dobbs decision its providers were performing medical abortions for pregnancies up to 11 weeks (the procedure is legal in Georgia until around 20 weeks).

Planned Parenthood says its providers were devastated at having to turn away patients once an ultrasound showed fetal cardiac activity — especially since the restrictions decided by lawmakers, they say, were not based in “medical science or sound science.”

“The consequences of being denied an abortion can be deadly, especially for Black women, who, because of medical racism and systemic barriers to care, experience maternal mortality at higher rates than white women,” Kennedy said. “Now we're reviewing how to resume offering abortion up to 11 weeks. And in the coming months, we hope to be able to expand our services so that patients may be seen up to Georgia's limit.”

In addition to the emotional toll and logistical issues, organizations were battling through frustration and confusion when the Supreme Court's ruling came down. Providers like Carafem and Planned Parenthood had to sort out what the halting of abortion services after six weeks — a procedure that had been federally protected for almost 50 years — meant for them and their patients.

“They were angry, they were concerned about what this meant for the people that they serve: their patients,” Kennedy said. “They were concerned about what this meant for them and their families. There was a lot of confusion as to what services can we provide, up until what point of pregnancy. What steps do we have to take? So [McBurney’s decision] is a really relieving moment for providers, who have been really restricted in how they talk to their patients and how they provide information to their patients around pregnancy.”

In response to the judge’s ruling, Kemp’s office objected that the decision “places the personal beliefs of a judge over the will of the Legislature and people of Georgia” and added that the Republican governor is ready to take action.

“The state has already filed a notice of appeal, and we will continue to fight for the lives of Georgia’s unborn children,” Kemp’s spokesman, Andrew Isenhour, told Yahoo News in a statement.

Providers, acknowledging the challenges ahead with the looming appeal and the Republican makeup of the state Legislature, are proceeding with caution. They say they must remain “extraordinarily nimble” amid the ongoing legal challenges. The example of Texas proved to be a cautionary tale they are taking seriously. Abortions there resumed in October 2021 after a federal judge halted the state’s abortion law, which was similar to Georgia’s. The ban was ultimately upheld.

“We have unfortunately had to become experts at our internal processes, our communication, changing information as quickly as possible, while maintaining a high degree of quality and being assured that we were following all applicable laws,” Grant said. “This one we had to change fast, but it was in a positive way. So within 24 hours, we were able to start serving clients who were further than six weeks. But that requirement to be nimble stands, and we know that this particular law may reverse itself again with very little or no notice.”

Planned Parenthood says that although the latest ruling is welcome, it’s not as easy as flipping a switch, and ramping up services will take some time. Carafem says the ruling has not necessarily resulted in an uptick of patients, because the organization had already been inundated with calls from people out of town who were seeking to access abortion care.

“We already had a circumstance where, unfortunately, some people had to wait to get an appointment because we have people traveling from surrounding states into Georgia trying to find a place to be seen,” Grant lamented. “We were already overwhelmed with the number of people who needed care. But this gives much more space and allows people that ability to have time to talk with their families and make a decision and get necessary resources a bit more easily.”

Providers stress that even in the midst of uncertainty, they are firm in their commitment to “safe care” for people seeking abortion services as quickly as they can.

“We are talking with partners and other advocacy groups in the state to figure out what the landscape is for us, given the results of the recent election in November,” Grant said. “We are talking with our supporters and advocates on what they think is possible to do proactively in the Legislature in Georgia.”