For nearly seven months, it has been illegal for physicians in Georgia to provide abortions after 20 weeks of pregnancy – but almost no one knew it.
Now, everyone is on the same page and lawyers for three obstetricians are appealing a ruling upholding the law.
Gov. Nathan Deal signed into law the Pain Capable Unborn Child Protection Act in 2012. The law reduced the legal time limit for abortions from 24 weeks to 20, based on the medically debated claim that fetuses can feel pain after 20 weeks.
The American Civil Liberties Union filed a lawsuit on behalf of the obstetricians in November 2012, challenging the measure on the grounds that it violates the right to privacy, ACLU Reproductive Freedom Project Director Jen Dalven said. An injunction prevented the law from taking effect while the lawsuit was in play.
Fast forward to October 2015, when Fulton County Superior Court Judge Kimberly M. Esmond Adams dismissed the lawsuit on the grounds of sovereign immunity, which bars citizens challenging the constitutionality of state law and protects state agencies from being sued in their official capacity unless the General Assembly waives that protection. The injunction was lifted and the ban was effectively in place.
Due to a clerical error, however, the ACLU said it was not notified and consequently missed a chance to appeal the ruling within 30 days. The organization only found out when a lawyer in another state noticed the order on the Fulton County Superior Court website and brought it to their attention, said Atlanta lawyer Don Samuel, who is representing the organization after the previous lawyer left.
“There’s no good explanation for what happened, but nobody thinks it’s anything sinister,” he said. “This is what happens when you underfund the court system.”
Word of ruling didn’t reach everyone
In a motion to set aside Adams’ decision, the ACLU blamed the introduction of a new electronic filing system weeks before the October 2015 order for not sending the ruling to the ACLU. In its response to the motion, however, the state blamed the ACLU for failing to notify the court that its Georgia counsel had changed law firms and thus had a new mailing address.
After all, the attorney general’s office noted in its response, it received a paper copy of the order by mail on November 4. The office declined to respond to questions about when it learned of the ruling or why it did not notify the ACLU (it was not under a legal obligation to do so).
None of which explains why doctors, hospitals or clinics, or the public were not informed that the case had been dismissed, and that the law was in effect. Not even the Georgia Department of Public Health knew. In December 2015, the state agency sent a letter to abortion providers indicating the law was still enjoined by the courts and the injunction was still in effect.
“The letter was sent because DPH was never informed that in October of 2015, a Fulton Superior Court judge dissolved the injunction that was keeping the law from taking effect,” spokeswoman Nancy Nydam said.
Adams declined to respond to questions about why the ACLU did not find out about the ruling in a timely manner.
Gen Wilson with Georgia Right to Life said, “Dozens, if not hundreds, of babies between 20 and 24 weeks gestation were illegally killed” over the past several months.
Wilson, in a statement Thursday, urged the attorney general to conduct a criminal investigation of all abortion providers to determine whether charges should be filed.
The group originally supported the bill, but withdraw that because of an exemption ‘for “medically futile’ pregnancies, which are often misdiagnosed,” Wilson said.
ACLU allowed to file an appeal
Clerical errors aside, Samuel said, the question at the heart of the lawsuit is the one worth focusing on.
Adams agreed, apparently, and granted the request to reissue her ruling in a hearing Wednesday. The move effectively restarts the clock on the window to appeal, which Samuel did on Thursday afternoon. Samuel filed a motion for an injunction pending appeal which, if granted, would halt the ban on abortions after 20 weeks, he said.
“The abortion issue itself is extremely important for the entire population as is the sovereignty issue,” he said.
The ACLU said Adams’ decision Wednesday “is a critical first step in ensuring that women’s constitutional rights are protected and that doctors can provide the care women need. But doctors shouldn’t have to go to court to ensure that they can provide appropriate care to their patients. It’s long past time for politicians to stop interfering in personal medical decisions that should be left to a woman and her doctor.”
Local issues such as this have implications nationwide, said Erin Matson, co-director of Reproaction, a direct action group dedicated to abortion access and what it terms reproductive justice.
“An unwanted or unsustainable pregnancy is an urgent matter that can’t wait. Between the callous way that abortion is banned without regard or recourse for the women who are seeking abortion care, to the way that judges are now deciding in which zip codes it is safe to be pregnant and up to how many weeks, the bottom line is that people are getting hurt as abortion is reduced to a political or constitutional issue,” she said in an email.
“If we didn’t have all these restrictions blatantly designed to provoke court challenges and all the mess and uncertainty that brings, we likely wouldn’t have issues like Georgia not being clear about whether or not it has a 20-week abortion ban in place.”
CNN’s Chris Lett and Keith Allen contributed to this report.