Judge strikes down Georgia six-week abortion ban

ATLANTA (CN) — For the second time, a state judge on Monday overturned Georgia’s ban on abortions as early as six weeks into pregnancy, ruling the law was unconstitutional and violates women’s privacy rights.

Fulton County Superior Court Judge Robert McBurney ordered for abortions to be regulated as they were before Georgia’s 2019 law took effect in July 2022 — meaning the procedure is allowed again up until about 22 weeks of pregnancy.

“A review 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 health care choices," McBurney wrote in a 26-page order.

“That power is not, however, unlimited. 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,” he added.

The law — known as the Living Infants Fairness and Equality, or LIFE, Act — bans most abortions once a “detectable human heartbeat” is present, although an embryo’s heart is not actually formed yet at the six-week mark. It is merely the earliest point in which ultrasounds can detect electrical impulses from the cells inside an embryo, a point at which many women don’t even know they are pregnant yet.

“Before the LIFE Act, Georgia law required a woman to carry to term any fetus that was viable, that had become something that — or more accurately someone who — could survive independently of the woman. That struck the proper balance between the woman’s right of ’liberty of privacy’ and the fetus’s right to life outside the womb,” he wrote.

McBurney also ruled that an individuals’ privacy rights under Georgia law include the right to make personal healthcare decisions. Because a pre-viability fetus can only survive through the woman carrying it, it is her private right to make medical decisions over her own body, the judge wrote.

“Women are not some piece of collectively owned community property the disposition of which is decided by majority vote. 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 wrote.

He added that for the first five months leading up to viability, a pregnant person’s right to privacy means they alone should choose whether they serve as “human incubators,” not the state.

“Gluttony and self-deprivation are both constitutionally protected lifestyles. People are free to tattoo or pierce any and every square inch of their skin. And, ordinarily, one can pursue — or refuse — medical care, elective or essential,” McBurney wrote.

McBurney wrote that while the state’s interest in protecting an “unborn” life is compelling, that life cannot yet be sustained by the state, so the balance of rights favors the pregnant person until the fetus becomes viable outside the womb.

“Ending the pregnancy at that point would be ending a life that our community collectively can and would otherwise preserve; no one person should have the power to terminate that,” he wrote.

The order comes after the state Supreme Court last year reversed a 2022 ruling from McBurney in which he said the 2019 law had been passed illegally since Roe v. Wade was the law of the land at the time. In 2022, the U.S. Supreme Court overturned Roe v. Wade , which allowed abortions up until a fetus could be viable outside the mother’s body, and sent the power to regulate the procedure back to the states.

Georgia’s Supreme Court remanded the case back to McBurney, who then was asked to rule on the constitutionality of the law.

In the lawsuit, abortion rights advocates and doctors argued that the law’s “medical emergency” exceptions excluded mental or emotional conditions, that could cause pregnant women to engage in self-harm if forced to proceed with the pregnancy. McBurney sided with their argument, finding the mistreatment of women with diagnosed mental health emergencies violates the Equal Protection Clause of the Georgia Constitution.

He also sided with their argument that the law unconstitutionally violates patients’ right to privacy by empowering prosecutors to obtain personal medical information without sufficient process.

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