Abortions after the sixth week of pregnancy are currently legal in Georgia after a state trial judge ruled that the so-called “heartbeat” ban is invalid because it was clearly unconstitutional when it was passed in 2019.
Fulton County Superior Court Judge Robert McBurney confirmed the law was unenforceable after a two-day trial that ended Oct. 25.
“In Georgia, it is fundamental that ‘[l]Acts of law that violate this Constitution or the United States Constitution are void and the judiciary must declare them so,'” McBurney wrote in Tuesday’s statement. The constitutionality of a law should also be determined at the date of its passage by the legislature, he said.
The law, which bans pre-viability abortions after embryonic heart activity has been detected, was illegal under the scrutiny of the U.S. Supreme Court at the time of its passage and was therefore “void forever,” McBurney said. Subsequent events, such as the Supreme Court overturning that precedent in Dobbs v. Jackson Women’s Health Organization, make no difference, he said.
The six-week ban could someday be the law in Georgia, McBurney said. But to do so, the state legislature “must determine, in the glare of the public attention that will undoubtedly and appropriately attend such an important and momentous debate, whether the rights of unborn children justify such a limitation of women’s right to bodily autonomy and privacy,” he said called.
Other Disputed Provisions
McBurney also opposed a provision requiring providers to report performing an abortion after detecting a fetal heartbeat, but left a legal requirement requiring physicians to perform ultrasound scans before performing an abortion.
McBurney previously denied a request to block prosecution of the law pending trial, saying he does not have the authority to issue a restraining order before hearing the case on the merits.
The law in question made exceptions for cases of medical emergencies, rape or incest where there was an official police report. Physicians who break the law could face prison terms of one to 10 years, loss of their medical license and civil lawsuits from patients.
Abortion advocates, including a group representing women of color, are taking Georgia to state court to prevent it from passing three amendments to Georgia’s LIFE law. According to SisterSong Women of Color Reproductive Justice Collective, Feminist Women’s Health Center, Planned Parenthood Southeast Inc., and others, HB 481 violates the Georgia Constitution’s rights to privacy, liberty, and equal protection.
McBurney voided two of three provisions but declined to comment on the state’s constitutional issue. Whether a post-heartbeat ban violates Georgia’s constitution cannot be decided at this time as it is not yet a law in the state, he said.
Planned Parenthood is funded by Bloomberg Philanthropies, the nonprofit organization founded by Michael Bloomberg, owner of Bloomberg Law.
Bondurant Mixson & Elmore LLP, Caplan Cobb LLC, American Civil Liberties Union Foundation Inc., American Civil Liberties Union Foundation of Georgia Inc., Center for Reproductive Rights and Planned Parenthood Federation of America are representing plaintiffs.
The case is Sistersong Women of Color Reproductive Justices Collective v. State, Ga. Super. Ct., No. 2022CV367796, 11/15/22.
