A Georgia judge on Monday struck down the state’s abortion law, which took effect in 2022 and effectively prohibited abortions beyond about six weeks of pregnancy.

In a 26-page opinion, the Fulton county superior judge Robert McBurney ruled that the state’s abortion laws must revert to what they were before the six-week ban – known as the Life Act – was passed in 2019. The ban was blocked as long as Roe v Wade was the law of the land, but went into effect after the US supreme court overturned Roe in 2022.

Abortions are now legal in Georgia up until about 22 weeks of pregnancy – the point at which Georgia permitted abortions prior to the Life Act. However, fetal viability tends to occur closer to 24 weeks of pregnancy.

Georgia’s attorney general, Republican Chris Carr, could appeal the case to the state supreme court and ask it to reinstate the six-week ban. The supreme court previously let the ban take effect at an earlier stage in the case.

From the Ruling:

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.

...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.

Considering the compelling record evidence about the physical, mental, and emotional impact of unwanted pregnancies on the women who are forced by law to carry them to term (as well as on their other living children), the Court finds that, until the pregnancy is viable, a woman’s right to make decisions about her body and her health remains private and protected, i.e., remains
her business and her business alone. When someone other than the pregnant woman is able to sustain the fetus, then -- and only then -- should those other voices have a say in the discussion about the decisions the pregnant woman makes concerning her body and what is growing within it.

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.

Accordingly, Section 4 of the LIFE Act is hereby DECLARED unconstitutional.

Background-The Plaintiffs Did Not Challenge all of GA’s Abortion Ban Law, Just Certain Sections:

• On 4 April 2019, the Georgia Legislature passed H.B. 481, entitled the “Living Infants Fairness and Equality (LIFE) Act.” Governor Kemp signed it on 7 May 2019 and it took effect — or at least the constitutional portions of it did — on 1 January 2020.
• Section 4 of the LIFE Act amended O.C.G.A. § 16-12-141 to, among other things, criminalize abortions occurring after the embryo generates a “detectable human heartbeat”, a development which both sides in this litigation agree typically occurs around six weeks after the mother’s last menstrual period. Section 10 amended O.C.G.A. § 31-9B-2, concerning a physician’s obligations when performing abortions, to require doctors to make “a determination of the presence of a detectable human heartbeat … of an unborn child” before performing any abortion (absent a medical emergency or a medically futile pregnancy).
  • Section 4 also added several exceptions to the post-embryonic heartbeat abortion ban — to include certain non-mental health medical emergencies and rape or incest (but only if a police report is filed) — and expanded prosecutors’ access to women’s health records to both the circuit in which the procedure occurred and the circuit in which the woman who underwent the procedure resides.
• The Act wrought other statutory changes as well, all consistent with its policy theme that unborn children are “natural persons,” but its fundamental alteration to Georgia 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.