A judge in Georgia’s Fulton County struck down the state’s six-week abortion ban Monday, allowing the procedure to resume and making it legal up to 22 weeks of pregnancy.
The state law, known as the LIFE Act, was signed by Republican Gov. Brian Kemp in 2019 but didn’t take effect until July 2022 after it faced a legal challenge and the Supreme Court’s reversal of Roe v. Wade.
Judge Robert McBurney wrote in his ruling Monday that a review of “of our higher courts’ interpretations of ‘liberty’ demonstrates that liberty in Georgia includes in its meaning, in its protections, and in its bundle of rights the power of a woman to control her own body, to decide what happens to it and in it, and to reject state interference with her healthcare choices.”
“That power is not, however, unlimited,” McBurney continued. “When a fetus growing inside a woman reaches viability, when society can assume care and responsibility for that separate life, then — and only then — may society intervene.”
The judge wrote that the law’s fundamental alteration to previous state law was “its extreme narrowing of the window of time within which women have the legal ability to end a pregnancy from roughly twenty weeks (i.e., viability) down to a mere six weeks, a point at which many — if not most — women are completely unaware or at best unsure if they are pregnant.”
The case stemmed from a lawsuit filed by SisterSong Women of Color Reproductive Justice Collective and other plaintiffs in 2019 soon after Kemp signed it into law. As it faced the legal challenge, in 2022, McBurney ruled that year that the law violated the U.S. Constitution in 2022 and struck it down. The Georgia Supreme Court, however, soon took up the case and allowed it to remain in effect.
The case was sent back to McBurney, who found the law in violation of the state’s Constitution.
“[D]oes a Georgian’s right to liberty of privacy encompass the right to make personal healthcare decisions? Plainly it does,” the judge wrote.
He said the record in the case is clear that “for many women, their pregnancy was unintended, unexpected, and often unknown until well after the embryonic heartbeat began. Yet that’s too late under the LIFE Act’s strictures: these women are now forbidden from undoing that life-altering change of circumstances — before they even knew the change had occurred.”
“For these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability. It is not for a legislator, a judge, or a Commander from The Handmaid’s Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could — or should — force them to serve as a human tissue bank or to give up a kidney for the benefit of another,” the judge wrote.
McBurney also took aim at a portion of the law that allows district attorneys to access the health records of women who’ve had abortions in their counties.
The law has no “definition of ‘health records.’ No explanation of the means by which the district attorney obtains such records: warrant, subpoena, demand letter, e-mail? And no mention of any notice to be provided to the ‘woman’ whose ‘health records’ have been made ‘available,'” the judge wrote.
“Given this language, Plaintiffs contend that the provision unconstitutionally violates their patients’ right to privacy by empowering prosecutors to obtain personal medical information without sufficient process. Plaintiffs are correct,” he added.
Kemp’s office blasted the judge’s ruling.
“Once again, the will of Georgians and their representatives have been overruled by the personal beliefs of one judge. Protecting the lives of the most vulnerable among us is one of our most sacred responsibilities, and Georgia will continue to be a place where we fight for the lives of the unborn,” said Kemp’s spokesman, Garrison Douglas, in a statement.
Monica Simpson, executive director of SisterSong Women, called the ruling “a significant step in the right direction.”
“We are encouraged that a Georgia court has ruled for bodily autonomy. At the same time, we can’t forget that every day the ban has been in place has been a day too long—and we have felt the dire consequences with the devastating and preventable deaths of Amber Nicole Thurman and Candi Miller,” Simpson said in a statement.
Thurman and Miller are two women who died after they experienced complications from having taken abortion pills. Their cases have been highlighted by Vice President Kamala Harris in her White House bid.
Miller, who had numerous health issues, had been scared to see a doctor because of the law, and Thurman was hospitalized for 20 hours before doctors decided they could legally operate on her. ProPublica reported that a state board found both deaths were preventable.
