Document Revised September 22
What is the goal of the lawsuit?
The 354-page lawsuit seeks to overturn HB 481, Georgia’s six-week abortion ban passed in 2019 and until recently “stayed” by Federal court order. While attorneys also asked the Fulton Superior Court to immediately block enforcement of the law while the case makes its way through the legal system, the request was denied.
Who filed the lawsuit?
This case was filed by the American Civil Liberties Union, the ACLU of Georgia, the Center for Reproductive Rights, Planned Parenthood Federation of America, and Georgia-based law firms Caplan Cobb and Bondurant Mixson & Elmore on behalf of SisterSong Women of Color Reproductive Justice Collective (the lead plaintiff,) 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.
What are some of the allegations in the lawsuit?
The state court challenge asserts:
- HB 481 was void from the start under Georgia judicial precedent because it clearly violated federal constitutional precedent when it passed in 2019, and a subsequent change in federal law cannot revive it.
- The Georgia Constitution’s especially strong protection for the fundamental right to privacy prohibits this political interference with an individual’s deeply personal and medically consequential decision whether to continue a pregnancy.
“The Six-Week Ban’s exceptions for rape and incest, medical emergencies, and lethal fetal anomalies are drawn so narrowly that they fail to mitigate harm to even the most vulnerable Georgians. The young girl who has not filed a police report about her father’s rapes; the woman whose doctor has counseled that pregnancy would jeopardize her life but whose health has not yet fully deteriorated; the patient whose pregnancy triggers a severe mental health episode and suicide risk; the family who receives a fetal diagnosis that would require extensive medical interventions they cannot afford – all are subject to and are being irreparably harmed by the Six-Week Ban,” the court case alleges.
“Every day the Six-Week Ban is in effect, it prohibits pregnant people from obtaining essential health care to end a pregnancy, to treat serious pregnancy complications, or to manage a miscarriage. Every day, it forces countless Georgians to travel hundreds or thousands of miles out of state for abortion care, at substantial expense. Worse yet, it forces Georgians who do not have the means for such travel to carry pregnancies and go through labor and delivery against their will—subjecting them to severe pain and life-threatening medical risks; preventing some from escaping abusive households; and consigning many to a life of poverty,” the court filing alleges.
Further, the lawsuit notes Georgia currently faces profound health care challenges, including a critical shortage of physicians and some of the highest rates of maternal and infant mortality in the nation. These harms are felt most acutely by Georgians of color, low-income Georgians, and people living in rural areas. Indeed, Black women in Georgia are more than twice as likely as white women to die during pregnancy, the lawsuit claims.
“The Medical Association of Georgia (“MAG”), the American College of Obstetricians and Gynecologists, and other leading state and national medical associations uniformly oppose the Six-Week Ban,” the lawsuit says. “MAG strongly opposed the Ban
because it “violates the doctor/patient relationship” and does not “allow women and families to maintain access to quality healthcare in Georgia.”
Why the emphasis on privacy?
Privacy concerns were also at the heart of the federal Roe v Wade case. Even though the Supreme Court of the United States (SCOTUS) opinion in the Dobbs case declares there is no federal protection for privacy, states often grant their own residents more rights than those enumerated in the U.S. Constitution.
Remarkably, Georgia’s strong case law protecting privacy is more than a century old via a 1905 Georgia Supreme Court case, Pavesich v New England Mutual Life Insurance. The case arose after the company used a photo of Paolo Pavesich without his permission to promote life insurance policies.
In the Pavesich opinion, Justices wrote Article 1, Section 1, Paragraph 1 of the Georgia constitution which reads,” No person shall be deprived of life, liberty, or property except by due process of law.” granted a right to privacy derived from “natural law.” It became one of the first explicit endorsements of the right to privacy in the United States and was subsequently cited in more than 200 United States legal cases, including four SCOTUS cases.
Many legal experts predict Georgia’s courts will not necessarily follow the lead of the United States Supreme Court given this firm state legal precedent. Atlanta Attorney Steve Saddow used the Pavesich case to persuade the Georgia Supreme Court to strike down the state’s anti-sodomy law in 1998. “There are direct parallels,” he says. “Both deal with personal privacy.”
Which judge will hear the case?
Fulton County Superior Judge Robert McBurney has been assigned to the case.
His official bio: Judge McBurney has served on the Superior Court of Fulton County since 2012. He is also one of the Court’s two drug court judges. He serves at the state-wide level as the presiding officer of the Judicial Qualifications Commission’s Hearing Panel and as a member of the Council of Superior Court Judge’s Plain Language Jury Instructions Committee.
Before joining the bench, Judge McBurney worked as an Assistant United States Attorney in Atlanta. As a federal prosecutor, he focused on cases involving public corruption, terrorism, and child sexual exploitation.
Judge McBurney received his B.A. (1990) and J.D. (1995) from Harvard. Prior to his two decades years of public service, he worked as a management consultant for McKinsey & Company. Judge McBurney lives in Atlanta with his wife, two wonderful (and exhausting) boys, and two equally wonderful (and exhausting) dogs.
Read it Yourself
A copy of the lawsuit can be found online here.
What are the groups who Filed the lawsuit saying?
Below are statements issued in July on behalf of several groups who are parties to the lawsuit.
ACLU of Georgia
“This abortion ban sends the disturbing message that Georgia is closed to women seeking equal opportunity and basic rights to make private decisions about their future. Georgia’s economic growth was built on the Atlanta business community’s commitment to diversity and tolerance and this extreme law will have a chilling effect on that growth.”
- Andrea Young, executive director of the ACLU of Georgia
ACLU Freedom Project
“Gov. Kemp says he is ‘overjoyed’ to enforce a devastating six-week abortion ban that will force countless Georgia residents to go through 34 weeks of pregnancy and hours or days of labor and delivery against their will. It’s horrific that he is celebrating a law that will be deadly for women and others who needs abortion care in Georgia – a state already facing a maternal mortality crisis, especially among Black women. When Kemp’s abortion ban suddenly took effect last week and patients across the state had their medical appointments canceled, they were understandably distraught – now forced to travel thousands of miles out of state for care, or else have their health and their futures upended by government-mandated pregnancy and childbirth. Georgia’s state constitution clearly prohibits Kemp’s extreme political interference with Georgians’ bodies, health, and lives, and we are fighting with every tool at our disposal to ensure everyone has the power to access the essential health care they need. The new law will have a disproportionate effect on poor people and people of color, who often have limited access to health care and may find it difficult to travel to other states to terminate a pregnancy. Georgia’s maternal mortality rate has consistently ranked among the worst in the nation. Our lawsuit is grounded in more than a century of Georgia Supreme Court precedent, establishing that the Georgia Constitution is highly protective of an individual’s right to be free from political interference with their body, health and life.”
- Julia Kaye, staff attorney with the ACLU Reproductive Freedom Project.
Center for Reproductive Rights
“Since the Supreme Court overturned Roe v. Wade last month, a domino effect of bans has decimated abortion access in the south and across the country. In Georgia, abortion providers were forced to cancel appointments overnight following the appellate court ruling that allowed this abortion ban to take effect immediately, throwing patients into a state of panic and confusion. With this new lawsuit, we’re fighting for them and the countless others who need access to time-sensitive, essential health care.”
- Nancy Northup, president and CEO of the Center for Reproductive Rights
Feminist Women’s Health Center
“For nearly 50 years, our clinic has provided our community with essential reproductive health care, including abortions. Then, overnight, we were forced to turn many of our patients away due to this cruel abortion ban. We won’t back down, and we will keep fighting until we can provide our patients with all of the care they need once more.”
- Kwajelyn Jackson, executive director of Feminist Women’s Health Center.
Planned Parenthood Federation of America
“Planned Parenthood has vowed to do everything in our power to protect abortion access for our patients, and today we continue that fight with our partners in Georgia. Since the Supreme Court plunged this country into a national health care crisis, people in states like Georgia have suffered the devastating consequences of anti-abortion lawmakers’ refusal to prioritize the health and wellbeing of their constituents over their own extreme political agendas. With today’s state court challenge, we are once again seeking to block this harmful law that denies Georgians the power to make their own personal medical decisions in a state with dangerously high maternal mortality rates. Together with our partners, we will continue to fight state by state, law by law, to restore and protect access to abortion, which is essential, life-saving health care.”
- Alexis McGill Johnson, President and CEO of Planned Parenthood Federation of America
Planned Parenthood Southeast
“It is unfathomable that Georgians and people all over the country are losing the right to control their own bodies, their own futures, and their own medical decisions. Georgia already has a severe physician shortage, not to mention some of the worst health outcomes in the nation — particularly for communities of color and people with low incomes. H.B. 481 is not only irresponsible, it’s flat out dangerous. Without relief, millions will be forced to flee the state, carry an unintended or dangerous pregnancy against their will, or seek support outside of the health care system. This law intrudes on the deeply personal and complex conversations that happen between a doctor and patient — we cannot and we will not let this stand.”
- Evelyn Reynolds, Chair of the Planned Parenthood Southeast Board of Directors
SisterSong
“SisterSong and our partners have been in the fight against Georgia’s six-week abortion ban from the beginning, and today we are sending a clear message that we’re not giving up. This extreme ban rooted in white supremacy will hurt so many and will disproportionately hurt Black women—who in Georgia are more than twice as likely as white women to die from pregnancy complications. We are committed to our vision for reproductive justice for Georgians, in which everyone including Queer, trans and low-income people all have the freedom to decide to have
- Monica Simpson, Executive Director of SisterSong Women of Color Reproductive Justice Collective