In declaring the Heartbeat Act unconstitutional, the Georgia judge flatly misunderstood the law

A Fulton County, Georgia Superior Court judge on Tuesday ruled that key provisions of the state’s six-week abortion ban were “clearly unconstitutional” and blocked further enforcement of the law.

When Judge Robert McBurney granted the plaintiff abortion groups’ motion for a partial judgment on the constitutionality of HB 481, Georgia’s 2019 Fairness and Equality Act for Living Infants, he had to perform some impressive legal contortions to achieve the outcome he so clearly described wanted.

The case is Sistersong Women of Color Reproductive Justice Coalition v. Georgia, and its ruling overturned the state’s abortion ban that had been in place since July of this year. But this is not the first time the constitutionality of Georgia’s LIFE law has come under debate.

A quick review of the case history shows how wrong McBurney was.

After its passage in 2019, a group of abortion rights and abortion advocacy groups sued to stop enforcement of the LIFE Act, arguing, among other things, that it was an unconstitutional violation of 14 Wade and Planned Parenthood against Casey.

The aborters won in the trial court, with the judge ruling that Roe and Casey blocked states from banning abortion before viability — which is considered around 22 to 24 weeks gestation — something Georgia law would do.

The abortionists were granted an injunction that prevented state officials from enforcing a provision of the law. Georgia state officials appealed.

While the appeals process was pending before the US Circuit Court of Appeals for the 11th Circuit, the Supreme Court considered the case of Dobbs v. Jackson Women’s Health Organization. Therefore, the 11th Circuit decided to wait until the Supreme Court issued its Dobbs verdict before issuing its verdict in the case.

In Dobbs, the Supreme Court overruled Roe and Casey, finding “it is time to heed the Constitution and return the issue of abortion to the elected representatives of the people.”

Sistersong’s battleship was sunk with Dobbs. The 11th Circuit noted that “Dobbs overturns many previous decisions of this court” and that an “interfering decision by the Supreme Court overrides our precedent where the decision is clearly correct.”

How much more “on point” could a case be than Dobbs’?

On this basis, the anti-abortionists’ claim – that Georgian law violates women’s substantive right to due process of abortion – failed. The Supreme Court ruled in Dobbs that there was no such right and that Roe was “enormously wrong” in inventing it.

That means any state abortion restriction will stand if “there is a rational basis on which legislatures could have believed it would serve legitimate state interests.” One of those interests, the court explained, was “the respect and preservation of unborn life” at all stages of development.

Based on this, the 11th Circuit ruled that Georgia’s Heartbeat Act was reasonable and the injunction preventing its enforcement was lifted.

But Georgia abortion rights groups tried again — this time in state court — joining a spate of litigation in state courts across the country as abortion advocates tried to secure his access from coast to coast.

This time they got the result they wanted when McBurney ruled that there was “no legal basis” for Georgia to ban abortions after six weeks and neither the state nor local governments could enforce an abortion ban after a heartbeat was detected.

How did McBurney come to such a mind-boggling conclusion? By overriding the realities of time and space and pretending Dobbs doesn’t exist. He argued that the LIFE Act must be viewed in the legal environment that existed when it was enacted – prior to the Dobbs ruling – and wrote:

Back then—in the spring of 2019—it was clearly unconstitutional for governments—at the federal, state, or local level—to ban abortion prior to feasibility anywhere in America, including Georgia. … [T]The statute did not become Georgia law when it was enacted, and it is not Georgia law now.

In Dobbs, the nation’s highest court ruled that the Constitution does not, never has, granted an abortion right and that Roe v. Wade and Planned Parenthood v. Casey were completely wrong in their alternative view. That was the court’s clear, authoritative statement, binding all lower courts.

Instead of a “constitutional right” to abortion, there was nothing more than a series of bad court decisions that whipped up a “right” out of thin air, using Roe’s flawed reasoning over and over for nearly 50 years, right up to the Supreme Court to put an end to the madness set.

McBurney’s opinion was heavily commented on. Among other things, he argued that Dobbs “isn’t any more ‘correct’ than” Roe or Casey, complained that Dobbs was full of “spongy language belittling the views of previous judges,” and sarcastically referred to “the magic of Dobbs “. and his lack of “something mystical higher wisdom”.

McBurney is clearly not a fan of Dobbs. But for court officials who have sworn to uphold the Constitution impartially, McBurney should know that personal preference doesn’t matter. Courts are not a kind of “superlegislature”.

As Dobbs clarifies, legislation is the sole responsibility of the legislature. Courts, on the other hand, are simply obliged to interpret and apply the law, whether they like the result being sought or not.

Regarding the state of Georgia, Kara Richardson, spokeswoman for Georgia Attorney General Chris Carr, said the office has already taken legal action in response to McBurney’s ruling and is appealing to the Georgia Supreme Court.

Richardson said state officials “will continue to fulfill our duty to defend our state’s laws in court.” Carr’s office added that “the ruling places a judge’s personal beliefs above the will of the legislature and the people of Georgia.”

Dobbs put the last nail in Roe’s coffin. A judge like McBurney who commits to “make a motion [Dobbs] faithful and complete” – but he claims that only post-Dobbs laws need to conform to that precedent – perhaps needs to be reminded.

This piece originally appeared in The Daily Signal