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This piece first appeared in our weekly e-newsletter, The Fallout. Join it right here.
Abortion entry within the South simply acquired extra precarious, because the Georgia Supreme Court docket on Tuesday allowed the state’s ban on abortion after six weeks to remain in impact. The choice is as devastating as it’s lawless, and it’s one more instance of conservative judges taking cues from the Supreme Court docket to go rogue when the temper strikes.
The ban at difficulty was handed in 2019, nicely earlier than the Supreme Court docket overturned Roe v. Wade. Abortion advocates filed their authorized challenges in federal court docket, the place the ban was blocked. However after a federal appeals court docket resolution in June 2022 that allowed the ban to take impact, advocates filed a brand new authorized problem in state court docket simply days later.
The ban has been ping-ponging within the courts ever since.
However setting apart all that forwards and backwards (and forwards and backwards), right here’s the one factor you really want to learn about Georgia’s six-week ban: It was unconstitutional again in 2019 when Gov. Brian Kemp signed it into legislation, and it stays unconstitutional now. What the Georgia Supreme Court docket did this week was take a web page out of the playbook for Dobbs v. Jackson Ladies’s Well being Group (aka the case that overturned Roe) and toss apart many years of Georgia legislation to permit the ban to take impact. As a result of the justices may.
All hope just isn’t misplaced within the combat to dam Georgia’s ban, although. Whereas Tuesday’s resolution permits the legislation to stay in impact, the case now returns to the trial court docket to find out whether or not it violates Georgians’ rights to privateness and equal safety beneath their state structure. This trial court docket has already blocked the ban as soon as, and I’d anticipate it should accomplish that a second time. Extra importantly, this second journey to the trial court docket will drive a ruling on substantive problems with Georgia constitutional legislation, which, in principle not less than, ought to be tougher for the partisans on the Georgia Supreme Court docket to ignore.
Whether or not they accomplish that or not stays to be seen, however these choices could have implications far past Georgia. If the ban is allowed to stay in impact, that would depart Virginia because the final remaining Southern state and not using a post-Dobbs abortion ban in impact.
It’s nearly not possible to grasp the reproductive health-care desert that may exist ought to Virginia enact its personal ban—which is an actual risk relying on the result of subsequent month’s election. Republican Gov. Glenn Youngkin has promised a 15-week ban if conservatives take management of the state home.
It’s changing into more and more clear that post-Dobbs, abortion rights advocates want to think about the judicial system as a part of a harm-reduction coverage to the chaos that has ensued because the Supreme Court docket overturned Roe. There isn’t a longer a assure that the rule of legislation will maintain and that the courts will acknowledge our rights. As a substitute of stockpiling rulings declaring any number of abortion bans unconstitutional, litigating these bans nowadays principally buys time for advocates to work towards different political options and for activists to do no matter they should guarantee sufferers get the care they want. That’s an essential a part of a post-Dobbs actuality and technique to ship care.
The courts had been by no means going to save lots of us, and this newest ruling from Georgia drives that reality residence.
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