Challenge to 2012 Georgia 20-week abortion ban revived

AP News
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Posted: May 25, 2016 11:51 PM

ATLANTA (AP) — A 2012 Georgia law banning abortions after 20 weeks quietly took effect nearly six months ago with no fanfare or resistance — until lawyers for three obstetricians who had challenged the measure realized what had happened.

Now those lawyers, who say they never got notice that their challenge was dismissed and therefore didn't appeal in time, want the law suspended again while they continue their fight.

The law passed four years ago bans doctors from performing abortions five months after an egg is fertilized, except when a fetus has a defect so severe it is unlikely to live. The law also makes an exception to protect the life or health of the mother, but not for cases of rape or incest.

The American Civil Liberties Union filed a lawsuit on behalf of three obstetricians challenging the law's constitutionality on Nov. 30, 2012, about a month before it was to take effect. The lawsuit says the exceptions are too narrow and doctors could face prison even when treating patients "in accordance to the best medical judgment." The ACLU also says the law violates the state's privacy protections as provided for in the state constitution.

Fulton County Superior Court Judge Kimberly M. Esmond Adams entered an order about three weeks later to keep the law from taking effect until the legal challenge had been resolved.

Both parties laid out their arguments in court filings, the latest of which came in the summer of 2014, according to online court records. More than a year later, on Oct. 30, 2015, the judge issued an order granting the state's request to dismiss the case.

Adams wrote in her order that the suit — filed against the state's governor, attorney general and other officials — is barred by sovereign immunity, which shields the state and state agencies from being sued in their official capacity unless the General Assembly waives that protection.

But Adams noted that she "did not arrive at this conclusion with haste or ease," and she invited an appeal of her decision "to address any existing inadequacies in our existing law." Notice of that appeal was due within 30 days of that decision.

The Georgia Department of Public Health told abortion providers in a February 2014 letter that they didn't need to report their compliance with the 20-week ban because the law was blocked by the judge's 2012 order, the ACLU said in a court filing. The letter said the department would continue to monitor the situation and would provide updates.

Louise Melling, deputy legal director for the ACLU said their obstetrician clients never received notice from the state that the law was entering into effect and the ACLU isn't aware of any such guidance from the state.

In fact, a letter from the state Department of Public Health dated Dec. 10, 2015, six weeks after the case was dismissed, indicated to abortion providers that the case was ongoing and the suspension of the law remained in effect.

Department of Public Health spokeswoman Nancy Nydam says the 2015 letter to abortion providers "was based on the best information available at that time." The department has not provided any other guidance to abortion providers since the judge's October ruling, she said.

Lawyers for the ACLU learned on March 10 from a lawyer unrelated to the case that the case had been dismissed, they said in court filings. They immediately called the judge's staff to ask for a copy of the order because ACLU attorneys in both Atlanta and New York who were working on the case had not received it.

The ACLU filed a request a week later asking the judge to simply strike her order and reissue it so they would have a chance to appeal the decision in a timely manner. After hearing arguments from both sides, Adams agreed at a hearing Wednesday to do just that.

The judge and a lawyer working with the ACLU speculated the notification may have been lost as a result of a new electronic filing system the court implemented the month Adams dismissed the case.

Jennifer Dalven, director of the ACLU's Reproductive Freedom Project, said after the hearing that they plan to immediately appeal the order and to ask that the law again be suspended while the case is pending.

If the Georgia Supreme Court takes the case, it would hear arguments on the sovereign immunity issue. If the high court decides sovereign immunity does not apply, it would send the case back to Adams to hear the merits of the challenge.

Thirteen other states ban abortion at about 20 weeks after fertilization, said Elizabeth Nash with the Guttmacher Institute, a research group that supports abortion rights. That includes South Carolina, where the governor signed a similar law Wednesday. Such laws have been struck down in Arizona and Idaho.