Georgia still battling over unborn lives

For 25 years, Gloria Nesmith has dated pregnancies as an ultrasound technician at an abortion facility in Atlanta. While testifying at a Fulton County courthouse on Georgia’s heartbeat law in late October, she tapped a tissue box sitting in front of her on the wood-paneled witness stand. She said it reminded her of how frequently she’s had to refill them at the facility since the law took effect in July, protecting babies from abortion after about six weeks of pregnancy.

“I think we have more … women who cry, maybe tears of complete relief,” she said, referring to women who find their babies don’t have cardiac activity yet. But she said women also cry when she tells them they’ll need to travel out-of-state for an abortion.

After the trial, Fulton County Superior Court Judge Robert McBurney ruled on Nov. 15 to block enforcement of the heartbeat law. McBurney said it was “plainly unconstitutional” because it originally passed in 2019, before the Supreme Court’s Dobbs v. Jackson Women’s Health ruling overturned Roe v. Wade and gave states more freedom to protect unborn lives. As this case makes its way through the courts, Georgia’s U.S. Senate candidates continue to face off on the abortion issue in preparation for a runoff election on Dec. 6. Georgia’s multi-tiered abortion debate highlights the central questions on both sides of the post-Dobbs landscape.

Abortion providers in the state say the pro-life law stopped about 87 percent of abortions that had been taking place in the state. The legislation makes exceptions for threats to a mother’s life and reported cases of rape and incest, also clarifying that the law does not ban the removal of stillbirths or babies who have miscarried. But in all other cases, it protects babies from abortion once they have a detectable heartbeat. The American Civil Liberties Union claimed that the law violates personal privacy and “hand-tied” healthcare providers with fear of legal consequences for wrongly applying any exceptions.

Charlotte Lozier Institute researcher Dr. Ingrid Skop testified on behalf of the state of Georgia. She’s a practicing OB-GYN in Texas, where a similar heartbeat law took effect in September 2021. Since then, she’s watched how the law has served women, their babies, and other doctors in Texas. “There is nothing that this law is telling doctors to do or not do that we haven’t always done,” Skop said. “We’ve always intervened when we needed to save a woman’s life.”

According to the Georgia News Collaborative, nearly 62 percent of Georgia voters oppose the heartbeat law. The collaborative commissioned this poll from the School of Public and International Affairs Survey Research Center at the University of Georgia.

While the outcome of this case is out of their hands, voters can weigh in on the Dec. 6 runoff between U.S. Senate candidates with contrasting views on abortion.

“It is apparent that God has given us a range of choices,” said incumbent Democratic Sen. Raphael Warnock during a debate with opponent Herschel Walker in October. “And the people of Georgia have a choice right now about who they think should represent them in the Senate.”

During that same debate, Warnock said, “A patient’s room is too narrow, and small, and cramped a space for a woman, her doctor, and the United States government.” Walker countered that “there’s a baby in that room, as well.”

Critics question Walker’s pro-life stance because a former girlfriend says he gave her a check and urged her to get an abortion. Walker continues to deny that he knew what the check was for.

At the October trial for the heartbeat law, Dr. Skop emphasized the importance of considering unborn babies equal to all persons. As an OB-GYN, she believes she has a “responsibility to two patients. … I weigh the different outcomes of different interventions based on how it will affect both of my patients.”

By establishing 14th Amendment personhood to the child, Georgia’s heartbeat law enables mothers to claim their unborn baby on state taxes and seek support from the father. To demonstrate this personhood to the court, Knoxville, Tenn., lawyer Ed Trent displayed on the monitor next to the witness stand an ultrasound of an embryo. The sound of its heartbeat played through the speaker. He asked North Carolina OB-GYN Dr. Jeffrey Wright to identify what the court saw and heard. With the muffled pulsing of the ultrasound playing underneath, Wright replied, “You’re seeing the heartbeat. You’re seeing the cardiac muscle contracting under the rhythmic coordination of the electrical system of the heart. … That’s a 6-week baby.”

Early in his campaign Herschel Walker opposed the heartbeat law for including exceptions, saying, “There’s no exceptions in my mind. … I believe in life.” But in an interview with ABC News before the election, he decided to support the law. “That’s the bill of the people from Gov. [Brian] Kemp,” he said. “What the people of Georgia stand for, I’m gonna stand with them."

Under the heartbeat law, a provider who decides abortion is necessary for medical reasons must report information about how the gestational age of the pregnancy was determined, if the pregnancy was medically futile, and what method of abortion was used.

OB-GYN and Emory University maternal-fetal medicine expert Dr. Martina Badell testified fear of prosecution can blur physicians’ medical judgment. Wright disagreed. He said maternal-fetal medicine doctors make judgments to continue or end a pregnancy every day. They operate from a “fixed universe” of guidelines defining the “major bodily functions” to make judgments for medical care. Wright also recognized that in a criminal statute like Georgia’s heartbeat law, “It’s not just people picking at each other. It’s, ‘This has to be demonstrated beyond a reasonable doubt.’ … The fact that the American College of OB-GYN has a practice guideline that says ending the pregnancy is appropriate … that produces at least a reasonable doubt.” McBurney verbally agreed.

McBurney’s decision to suspend Georgia’s heartbeat law is facing scrutiny not only from pro-life advocates but also from the legal community. Law professor Howard Wasserman criticized McBurney for applying Georgia’s “void ab initio,” a doctrine stating that “a law enacted contrary to binding judicial precedent never had any force or effect.” Wasserman blogged that under void ab initio, the legislature succumbs to judicial supremacy. It can define the state’s statute books, but never reach the “substantive constitutional question … because the new law never was law.”

Georgia’s recently reelected attorney general, Christopher Carr, immediately appealed the decision to the Georgia Supreme Court. The court is likely to uphold the pro-life law or even consider a new and stricter one. 

Georgia’s previous law legalizing abortion up to 22 weeks is in effect until the court hears the appeal.