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Judge hears testimony in bid to strike down Georgia abortion law

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Georgia's ban on abortion as early as six weeks into pregnancy is causing distress among women denied the procedure and confusion among doctors, an abortion provider testified Monday on the first day of a trial to determine whether the state can continue enforcing the restriction.

Carrie Cwiak, a plaintiff in a lawsuit that seeks to strike down the law, said women who have learned they are past the time period when abortion is allowed under state law have wondered out loud what they will do next.

"It's upsetting," Cwiak, a gynecology professor at the Emory University School of Medicine, said. "It's emotional."

Fulton County Superior Court Judge Robert McBurney has scheduled two days of testimony in the lawsuit, which argues the ban violates the Georgia Constitution's right to privacy and liberty by "forcing pregnancy and childbirth upon countless Georgians." He will then issue a ruling, though he said Monday that it will not happen until after Nov. 8.

Georgia's law bans most abortions once a "detectable human heartbeat" is present. Cardiac activity can be detected by ultrasound in cells within an embryo that will eventually become the heart as early as six weeks into a pregnancy. That means most abortions in Georgia are effectively banned at a point before many women know they are pregnant.

The law includes exceptions for rape and incest, as long as a police report is filed, and allows for later abortions when the mother's life is at risk or a serious medical condition renders a fetus unviable.

Cwiak said the law, however, does not provide clear guidance about when doctors can intervene. The potential penalty for an error is also chilling, she said.

"The fact that the bill has as the consequence criminal prosecution if you have a different interpretation than the legal interpretation, that's very distressing to physicians," she said.

Under questioning by Christopher Bartolomucci, an attorney representing the state, Cwiak acknowledged that she did not know of any doctors who had been prosecuted for performing an abortion for a medical emergency. Bartolomucci, in an effort to discredit Cwiak, also raised her previous tweets, including one in which she slammed conservative justices on the U.S. Supreme Court using an expletive in the context of their decision to overturn Roe v. Wade.

The state attorney general's office said in a court filing that Georgia's privacy protections do not extend to abortion because it affects another "human life."

"There is a third party involved," Georgia Solicitor General Stephen Petrany told McBurney.

McBurney pushed back on that argument by raising the hypothetical example of a young girl who is raped by her stepdad and becomes pregnant, but is too afraid to report the crime.

He said he wasn't sure that the girl's right to privacy would totally cease to exist.

But he also asked an attorney for the plaintiffs to address the state Legislature's desire to treat the embryo as a person.

"That's where I'm wrestling right now," he said.

The judge heard from two more plaintiffs' experts, including Whitney Rice, a public health researcher at Emory University who testified that she expects Georgia's abortion ban to disproportionately harm Black women. The trial will continue Tuesday.

The doctors and advocacy groups that filed the lawsuit in July also argue the law was invalid from the start because it violated the U.S. Constitution and U.S. Supreme Court precedent when it was enacted.

Georgia's law was passed by state lawmakers and signed by Republican Gov. Brian Kemp in 2019 but it had been blocked from taking effect until the Supreme Court overturned Roe v. Wade, which had protected the right to an abortion for nearly 50 years. The 11th U.S. Circuit Court of Appeals allowed Georgia to begin enforcing its abortion law just over three weeks after the high court's decision in June.

The state has argued that the Roe decision itself was wrong and the Supreme Court ruling wiped it out of existence.

In August, McBurney rejected a request by the plaintiffs to immediately block the abortion law while the lawsuit was pending, though he stressed that decision did not touch on the merits of the case. Earlier this month, he denied a request by state officials to postpone the trial.

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