Fulton County Superior Court Judge Robert McBurney ruled Monday afternoon Georgia’s heartbeat law which bans abortions at six weeks of pregnancy is unconstitutional. The Georgia’s Living Infants Fairness and Equality (LIFE) Act, bans most abortions the moment “a detectable human heartbeat” is present.
Cardiac activity can be detected by ultrasound in cells within an embryo that will become the heart. That process could take place as early as six weeks into a pregnancy, before many pregnancies are detected.
Georgia is one of fourteen states where such abortion bans are enforced. As a result, abortions can resume beyond six weeks in Georgia until 22 weeks of pregnancy.
Here is a portion of McBurney’s ruling:
“While the State’s interest in protecting “unborn” life is compelling, until that life can be sustained by the State — and not solely by the woman compelled by the Act to do the State’s work — the balance of rights favors the woman.”
The Republican majority in the General Assembly passed the Living Infants and Equality (LIFE) Act in 2019. The law bans abortion in Georgia after a fetal heartbeat appears. The law included exceptions for rape, incest, and “medical emergencies,” defined as a life-threatening condition or threat of irreversible physical impairment to the mother.
Consequently, federal courts blocked the law from taking effect until 2022, after the United States Supreme Court overturned the 1973 Roe v. Wade decision that legalized abortion.
Georgia Democrats are celebrating the victory while preparing for the possibility McBurney’s ruling will be subject to appeal.
“Today’s decision is a critical victory for reproductive freedom in Georgia, reaffirming that politicians have no place in our personal medical decisions. While I am encouraged by this ruling, the work to restore reproductive freedom is far from over. Courts alone cannot protect our rights.
We need federal protections for the right to make decisions about our bodies and futures now more than ever. I will continue fighting in Congress to ensure that everyone, no matter their zip code, has access to the full range of reproductive healthcare, including abortion.”
The reproductive rights group SisterSong filed a lawsuit challenging the law. They won an initial ruling by McBurney in November 2022 declaring the ban unconstitutional. However, the Georgia Supreme Court reversed McBurney’s decision one year later. The body sent the case back to Fulton County Superior Court, leading to Monday’s decision.
McBurney says women cannot do the State’s work
Additionally, McBurney’s order says “until that life can be sustained by the State — and not solely by the woman compelled by the Act to do the State’s work — the balance of rights favors the woman.”
“Today’s ruling is a win for women across Georgia, who once again have the right to make decisions about their own bodies,” says Georgia State Senator Sonya Halpern. “While we know this decision will likely face appeal, this moment offers hope to countless women who deserve the dignity and freedom to make their own healthcare choices. We will continue to fight to defend these rights for women across our state.”
Republicans promise to keep fighting for abortion restrictions
Governor Brian Kemp, who signed the bill into law on May 7, 2019, issued the following statement:
“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.”
Unlike other states, Georgia does not have a mechanism allowing initiatives to appear on a ballot. As such, there are at least ten states that have the option to codify abortion access into their state’s constitution. However, Democrats have continually fought to make abortion access a central issue heading into November’s elections.
On the other hand, McBurney’s ruling also says that Georgia’s heartbeat bill induces women into a legal fight. According to his order, Georgia’s abortion ban makes women the inherent property of the State. Why? Their access to care is, “decided by majority vote.” McBurney continues, “Forcing a woman to carry an unwanted, not-yet-viable fetus to term violates her constitutional rights to liberty and privacy, even taking into consideration whatever bundle of rights the not-yet-viable fetus may have.”
A cautionary tale regarding abortion bans
Georgia’s abortion ban was held to harsh scrutiny as the story of Amber Nicole Thurman received more notoriety. Thurman, 28, went to Piedmont Henry Hospital in suburban Atlanta with signs of sepsis in August 2022. She had taken USDA-approved mifepristone and misoprostol to end her pregnancy. It took 20 hours for doctors to intervene with a dilation and curettage procedure. That procedure had become a felony under Georgia’s abortion ban with few exceptions. Thurman passed away. First reported by ProPublica, Thurman’s ordeal is the first publicized case of a woman dying as a result of Georgia’s abortion ban.
“Finally a judge that understands that life and liberty are paramount to our democracy,” says Georgia State Representative Dar’shun Kendrick, a Democrat representing State House District 95, which contains portions of Lithonia plus DeKalb, Gwinnett and Rockdale Counties. Life and liberty for the mother [are] first and foremost.”
What’s next?
Vice President Kamala Harris has called for codifying Roe v. Wade into federal law. Conversely, former President Donald Trump, the Republican nominee, supports leaving the abortion issue to the states.
“I applaud this ruling, and this is a win because abortion is once again legal in Georgia today,” says Debra Shigley, a candidate for Georgia State House District 47. “Will it be tomorrow? We can expect an appeal from the State, and possible temporary suspension of the ruling by the Georgia Supreme Court.
This fight for our reproductive rights is still very much ongoing no matter how the Georgia Supreme Court rules. Republicans including, [Speaker Pro Tempore] Jan Jones, have made their intent very clear. We know exactly what their playbook will be in the next legislative session. That is exactly why we need to elect pro-choice candidates to ensure reproductive freedom in Georgia.”
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