Challenge to Georgia 20-week abortion ban goes to high court

ATLANTA (AP) - Georgia's highest court is scheduled to hear arguments on whether a lower court judge was right to dismiss a challenge to a state law that bans abortions after 20 weeks.

The Georgia Supreme Court plans to hear arguments in the case Monday. A Fulton County Superior Court judge dismissed the case, saying the challenge was barred by the principle of sovereign immunity.

Here are some things to know about this case:


The Georgia General Assembly passed the law in 2012. It 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.

After three obstetricians filed a lawsuit challenging the measure, a judge issued an order in December 2012, just before the law was to take effect, temporarily putting it on hold.



The American Civil Liberties Union filed the lawsuit challenging the law's constitutionality on behalf of the obstetricians. The lawsuit said the exceptions are too narrow and doctors could face prison even when treating patients "in accordance to the best medical judgment." The ACLU also said the law violates the state's privacy protections as provided for in the state constitution.



Fulton County Superior Court Judge Kimberly Esmond Adams in October 2015 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."

The ACLU said it did not receive notice of Adams' order and, therefore, missed the deadline to appeal, meaning the law quietly entered into effect in late 2015.

The ACLU in March filed a motion asking Adams to reissue her order to reset the clock on the appeal deadline. Adams did that following a hearing in May, and the ACLU promptly filed an appeal.



Arguments before the state Supreme Court Monday won't focus on the merits of the case. They will center on whether Adams was correct to dismiss the case because of sovereign immunity.

Lawyers for the doctors argue that sovereign immunity doesn't shield the state from judicial review when a challenge alleges that a law violates individual rights that are protected by the state constitution.

Lawyers for the state argue that there was no waiver of sovereign immunity, so the courts have no authority over the case.



Two of the Supreme Court's nine justices are recusing themselves, and two lower court judges have been designated to sit in for them for the oral arguments in this case. Justices Nels Peterson and Britt Grant, who were appointed to the court in November and sworn in last month, both had previously worked in the state attorney general's office and had argued on behalf of the state in this case.