Georgia Court Holds State’s Six-Week Abortion Ban Is Unconstitutional
- October 04, 2024
A Georgia trial court held September 30 that a state law banning most abortions after six weeks is unconstitutional and permanently enjoined its enforcement.
In 2019, Georgia enacted the Living Infants Fairness and Equality (LIFE) Act that criminalize abortions—with limited exceptions—after detectable fetal cardiac activity, which typically occurs around six weeks after the last menstrual period.
Fulton County Superior Court Judge Robert C.I. McBurney found the LIFE Act “infringes upon a woman’s fundamental rights to make her own healthcare choices and to decide what happens to her body, with her body, and in her body.” Because the law was not narrowly tailored to achieve a compelling state interest, McBurney found it could not stand.
“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,” McBurney said.
While acknowledging the state’s compelling interest in protecting “unborn” life, McBurney said that until the point of viability “the balance of rights favors the woman.”
In McBurney’s view, Georgia law before the LIFE Act, which prohibited abortions after a fetus could survive independently of the woman “struck the proper balance.”
McBurney also found the law violated equal protection under the Georgia Constitution. “A law that saves a mother from a potentially fatal pregnancy when the risk is purely physical but which fates her to death or serious injury or disability if the risk is ‘mental or emotional’ is patently unconstitutional and violative of the equal protection rights of pregnant women suffering from acute mental health issues,” the opinion said.
Meanwhile, on October 3, Georgia Attorney General Chris Carr appealed the ruling to the Georgia Supreme Court, arguing the LIFE Act is constitutionally sound. "The State suffers significant and irreparable harm every moment that the LIFE Act is enjoined," Carr argued in urging the high court to stay McBurney's ruling.
The case was back before the trial court on remand from the Georgia Supreme Court, which in October 2023 reversed a ruling that the ban was void ab initio because it was unconstitutional when enacted in 2019 before the Supreme Court overturned Roe v. Wade, 410 U.S. 113 (1973). A 2022 ruling held that under the Georgia Constitution, laws that violate the U.S. Constitution at the time of enactment are void and may not be subsequently revived without further legislative action. Sistersong Women of Color Reproductive Justice Collective v. Georgia, No. 2022CV367796 (Ga. Super. Ct. Nov. 15, 2022).
But the Georgia high court disagreed, noting the intervening decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct 2228 (2022), which found no constitutional right to an abortion, did not change the meaning of the U.S. Constitution, only the U.S. Supreme Court’s interpretation of it. Georgia v. Sistersong Women of Color Reproductive Justice Collective, No. S23A0421 (Ga. Oct. 24, 2023).
Georgia v. Sistersong Women of Color Reproductive, No. 2022CV367796 (Ga. Super Ct. Sept. 30, 2024).