Judge lifts Georgia’s abortion ban about 6 weeks ago

The story was updated at 2:36 p.m

A judge overturned Georgia’s abortion ban from around the sixth week of pregnancy, ruling Tuesday that when it came into effect it violated the US Constitution and precedent of the US Supreme Court and was therefore void.

Fulton County Superior Court Judge Robert McBurney’s ruling took immediate effect nationwide, although the attorney general’s office said it would appeal. The ban has been in effect since July.

It banned most abortions once a “detectable human heartbeat” was present. Heart activity can be detected as early as the sixth week of pregnancy by ultrasound in the cells of an embryo that will eventually become the heart. This means that most abortions in Georgia were banned before many women knew they were pregnant.

McBurney’s ruling came amid a lawsuit filed in July by doctors and advocacy groups seeking to overturn the ban on a number of grounds, including because it violates the Georgia Constitution’s right to privacy and liberty by forcing pregnancy and childbirth on women in the state. McBurney did not rule on this claim.

Instead, his decision was consistent with another of the lawsuit’s arguments — that the ban was invalid because it violated the US Constitution and precedent of the US Supreme Court when it went into effect.

Kara Richardson, a spokeswoman for Georgia Attorney General Chris Carr, said in an email that the office intends to “appeal immediately.”

Georgia’s law was passed by state legislatures and signed into law by Republican Gov. Brian Kemp in 2019, but failed to go into effect until the Supreme Court ruled in Roe v. Wade, which had protected abortion rights for nearly 50 years.

The 11th US Circuit Court of Appeals allowed Georgia to begin enforcing its abortion law just over three weeks after the Supreme Court decision in June.

Abortion clinics in the state remained open, but providers said they were turning away many women because heart activity was detected. These women could then either travel to another state for an abortion or continue their pregnancy.

During a two-day trial in October, abortion providers told McBurney the ban caused heartache and confusion among doctors for women who were denied the procedure.

McBurney wrote in his ruling that at the time the law was passed, “anywhere in America, including Georgia, it was clearly unconstitutional for governments—whether federal, state, or local—to ban abortion before it is feasible.”

He wrote that the law of the state “did not become the law of Georgia when it came into force, nor is it the law of Georgia now.”

The state had argued that the Roe decision itself was wrong and was obliterated by the Supreme Court ruling.

McBurney left the door open for state legislatures to reconsider the ban.

Now that the Supreme Court has ruled in Roe v. Wade, the 2019 abortion ban “may one day become Georgia law,” he wrote.

But this, he wrote, could not happen until the General Assembly, “in the keen light of the public attention which will no doubt and duly attend so important and momentous a debate, decides whether the rights of unborn children should impose such a restriction on the right of women to justify bodily autonomy.” and privacy.”

The Georgia ban provided exceptions for rape and incest, provided a police report was filed, and allowed later abortions when the mother’s life was in danger or a fetus was rendered unviable due to a serious medical condition.

At the October trial, state witnesses disputed claims that the law made it unclear when doctors could step in to perform a later abortion. They also argued that abortions themselves could harm women.

Abortion was a central issue in the US Senate dispute between Democrat Raphael Warnock and Republican Herschel Walker in Georgia, which will now go to a runoff in December. Two women have accused Walker, who is anti-abortion, of paying for the procedure. Walker vehemently denied this.