Legal expert weighs in on Georgia's abortion law hearings

ATLANTA - The Georgia Supreme Court will decide if Georgia’s controversial abortion law will stand. Justices heard arguments Tuesday on the so-called fetal heartbeat law.

Georgia has one of the most restrictive abortion laws in the nation. It bans terminating a pregnancy once a doctor can detect cardiac activity, generally around six weeks. 

Attorneys representing abortion-rights groups argue the Georgia statute is unconstitutional since Roe v. Wade, which guaranteed abortion rights, was still the law of the land when Gov. Brian Kemp signed the Georgia law back in 2019. 

"Under Georgia’s Constitution, if something was unconstitutional at the time that it was passed, then it was immediately void," said Fred Smith, a constitutional law expert and professor at Emory University Law School, summarizing the arguments of abortion rights advocates.

The state contends the Georgia law should stand since the U.S. Supreme Court last year ruled Roe v. Wade was wrong the whole time. "Given that the Supreme Court has now concluded Roe v Wade was incorrectly decided, it turns out that it was constitutional all along. We just didn’t know it yet," Smith said, summarizing the state’s argument.

FOX 5 asked Smith what if the court rules in favor of the state. The state restrictions would stand. "The six-week law is already the law of the land. It’s already unlawful to perform that particular procedure after 6-weeks," Smith said, adding such a decision likely would touch off another round or legal arguments.

What happens if the court sides with reproductive-rights advocates and strikes down the law? "Individuals would be able to obtain abortions again until around the 20-week or so instead of the six-week mark."

Smith says it would be up to state lawmakers to decide whether to reinstate the six-week ban.