Fulton judge overturns Georgia’s six-week abortion ban as unconstitutional

By: and - November 16, 2022 11:47 am

Fulton County Superior Court Judge Robert C. I. McBurney struck down Georgia’s six-week abortion ban. (Stanley Dunlap | Georgia Recorder)

ATLANTA — Abortion is legal again in Georgia – for now – after fetal cardiac activity is detected, which is usually after about six weeks and before many women know they are pregnant.

The six-week ban had been in effect since July but was thrown out Tuesday along with a requirement that physicians report to the state Department of Public Health when an abortion qualified under the state’s narrow exceptions, such as in the case of rape if a police report has been filed.

In his ruling, Fulton County Superior Court Judge Robert C. I. McBurney called the provisions “plainly unconstitutional” because they passed in 2019 and before the U.S. Supreme Court’s ruling in Dobbs vs. Jackson Women’s Health Organization ended the federal protection to abortion access.

“Under Dobbs, it may someday become the law of Georgia, but only after our Legislature determines in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate whether the rights of unborn children justify such a restriction on women’s right to bodily autonomy and privacy,” McBurney wrote in his ruling.

As is, the restrictions passed three years ago “exist on paper only,” he wrote.

“They were and are void and must be re-enacted in our post-Roe world if they are to become the law of Georgia,” McBurney wrote.

Attorney General Chris Carr quickly filed a notice to appeal with the Georgia Supreme Court Tuesday.

“We have filed a notice of appeal and will continue to fulfill our duty to defend the laws of our state in court,” Kara Richardson, Carr’s spokesperson, said in a statement.

Reaction to the ruling

Critics of the state’s new anti-abortion restrictions celebrated the ruling. Monica Simpson, who is the executive director of SisterSong Women of Color Reproductive Justice Collective, which is the lead plaintiff in a lawsuit, called the decision “a win for reproductive justice.”

“People were so disheartened by the Dobbs decision,” Simpson said. “When we do get these wins, it’s so important for our communities, it means so much to so many.

“We know that our fight for reproductive justice in this state is going to have to continue, but we are taking the time to really sit in this victory,” she added. “We are seeing reproductive justice show up in a way that is really, really powerful.”

Supporters of the law criticized the judge, who was appointed to the Fulton County bench by Republican Gov. Nathan Deal in 2012.

“Today’s ruling places the personal beliefs of a judge over the will of the legislature and people of Georgia. The state has already filed a notice of appeal, and we will continue to fight for the lives of Georgia’s unborn children,” Andrew Isenhour, a spokesperson for Gov. Brian Kemp, said in a statement.

State Rep. Ed Setzler, an Acworth Republican who sponsored the bill in 2019, says he is hoping for a different result with the state Supreme Court.

“It’s no surprise that a liberal Fulton County judge has attempted to throw another roadblock to prevent the implementation of the LIFE Act,” Setzler said Tuesday. “After a campaign season of the most craven, reckless lies told about this very reasonable bill, I have no doubt common sense and the protection of helpless unborn children will win very soon in the Georgia Supreme Court.”

State lawmakers are due to return to Atlanta for the new session in January but are unlikely to pursue any potential attempt to reenact the law as outlined by McBurney while the lawsuit finishes winding its way through the courts.

The restrictions narrowly passed in 2019 after a bitter and emotionally charged debate, and they have not been well received by most Georgians, if polling is a guide. A poll released last month found that nearly 62% of respondents in Georgia were opposed to the law, with about 54% saying they strongly objected to it.

The polarizing debate over abortion access was a dominant issue in the midterm election, which is dragging into overtime here in Georgia. Democratic U.S. Sen. Raphael Warnock and Republican Herschel Walker hold vastly different views. Warnock says he believes the issue should stay inside an exam room while Walker has said he would support a national abortion ban.

“I believe that we ought not replace the wisdom of women and their doctors with that of politicians,” Warnock said at an event Tuesday after the ruling was released. “We’re seeing right now the chaos that ensues when that happens.”

‘There’s a political accountability element to this as well’

Health care providers and abortion rights advocates, who are represented by the ACLU, filed a new legal challenge shortly after Georgia’s law took effect in July.

Their legal challenge argued the law violates Georgia’s state constitutional right to privacy and contended that the state Legislature should be required to pass a new law since Kemp signed HB 481 into law when Roe v. Wade was still federal precedent. The lawsuit did not challenge the law’s so-called personhood provisions.

McBurney, who held a two-day trial last month, agreed that lawmakers would need to start over, but he did not weigh in on whether a six-week abortion ban violates a woman’s right to privacy under the state constitution.

“Whether Georgia’s Constitution countenances a post-heartbeat ban (with certain exceptions for medical emergencies, rape, etc.) is not being decided here because that is not (yet) the law in Georgia,” he wrote. “Our state legislators are now, under Dobbs, free to move away from a post-viability ban in an effort to strike a different balance between the interests of fetal life and women’s bodily autonomy, should they conclude that that is what is best for Georgians.”

Anthony Michael Kreis, a Georgia State University law professor, said Georgia is an outlier from other states that passed similar laws in anticipation of a more conservative U.S. Supreme Court overturning Roe v. Wade.

The Georgia Constitution has a provision barring its lawmakers from passing laws that are unconstitutional at the time they are passed – and that provision is not in most state constitutions, Kreis said.

“Part of the reason for this is one, people are owed and entitled to due process, and they should know exactly what the laws are and what the law requires of them,” Kreis said. “And there’s also a principle here about legislative responsibility. Legislators should be adopting public policy which they in good faith think can be enforced right away, and so there’s a political accountability element to this as well.”

McBurney said he would rule later on whether a provision that allows local district attorneys to obtain a patient’s health records violates the state constitution’s right to privacy.

Georgia Recorder Senior Reporter Stanley Dunlap contributed to this story. 

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Jill Nolan
Jill Nolan

Jill Nolin has spent nearly 15 years reporting on state and local government in four states, focusing on policy and political stories and tracking public spending. She has spent the last five years chasing stories in the halls of Georgia’s Gold Dome, earning recognition for her work showing the impact of rising opioid addiction on the state’s rural communities. She is a graduate of Troy University.