Updated: Fulton judge overturns Georgia’s six-week abortion ban as unconstitutional


Abortion is legal again in Georgia – for now – after fetal heart activity has been detected, which usually happens after about six weeks and before many women know they are pregnant.

The six-week ban had been in place since July but was lifted Tuesday, along with the requirement that doctors must report to the state Department of Health if an abortion falls under the state’s narrow exceptions, such as a B. In the case of a rape by the police report was filed.

In his ruling, Fulton County Superior Court Judge Robert CI McBurney called the provisions “simply unconstitutional” because they were passed in 2019 and before the US Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization gave federal protection to women ended access to abortion.

“Under Dobbs, it may one day become Georgia law, but only after our legislature has determined whether the rights of unborn children should, in the keen light of the public attention that will no doubt and duly participate in so important and momentous a debate.” Restrictions on women justify rights to bodily autonomy and privacy,” McBurney wrote in his ruling.

As they stand, the restrictions passed three years ago exist “only on paper,” he wrote.

“They were and are invalid and must be recreated in our post-Roe world if they are to become Georgia law,” McBurney wrote.

Attorney General Chris Carr quickly filed an appeal in the Georgia Supreme Court on Tuesday.

“We have appealed and will continue to fulfill our duty to defend our state’s laws in court,” Carr spokeswoman Kara Richardson said in a statement.

reaction to the verdict

Critics of the state’s new anti-abortion restrictions hailed the ruling. Monica Simpson, executive director of the SisterSong Women of Color Reproductive Justice Collective, which is the lead plaintiff in a lawsuit, called the decision “a victory for reproductive justice.”

Monica Simpson, executive director of the SisterSong Women of Color Reproductive Justice Collective, speaks to reporters in October. Jill Nolin/Georgia Recorder

“People were so disheartened by Dobbs’ decision,” Simpson said. “When we achieve these achievements, it’s so important to our communities, it means so much to so many.

“We know our fight for reproductive justice in this state must continue, but we’re taking the time to really sit on this victory,” she added. “We’re seeing reproductive justice showing up in a really, really powerful way.”

Supporters of the law have criticized the judge, who was appointed to the Fulton County bench by Republican Gov. Nathan Deal in 2012.

“Today’s verdict puts the personal convictions of a judge ahead of the will of the legislature and the people of Georgia. The state has already appealed and we will continue to fight for the lives of Georgia’s unborn children,” Andrew Isenhour, a spokesman for Gov. Brian Kemp, said in a statement.

State Assemblyman Ed Setzler, an Acworth Republican who sponsored the 2019 bill, is hoping for a different outcome with the state Supreme Court.

“It’s no surprise that a liberal Fulton County judge has attempted to establish another roadblock to prevent implementation of the LIFE Act,” Setzler said Tuesday. “After a campaign season of the most cowardly, reckless lies told about this very sensible law, I have no doubt that common sense and the protection of helpless unborn children will very soon win in the Georgia Supreme Court.”

State lawmakers are expected to return to Atlanta for the new January session, but are unlikely to make any attempt to understand McBurney’s draft law while the lawsuit makes its way through the courts.

The restrictions narrowly passed in 2019 after a bitter and emotionally charged debate, and they have not been well received by most Georgians, if the polls are any indication. A survey published last month found that nearly 62% of respondents in Georgia opposed the law, with around 54% saying they strongly opposed it.

The divisive debate over access to abortion was a dominant theme in the midterm elections dragging on here in Georgia. Democratic US Senator Raphael Warnock and Republican Herschel Walker hold very different views. Warnock says he believes the issue should remain in an investigation room, while Walker said he would support a national abortion ban.

“I don’t think we should substitute politicians for the wisdom of women and their doctors,” Warnock said at an event Tuesday after the verdict was published. “We’re just seeing the chaos that ensues when that happens.”

“There is also a political accountability element”

Health care providers and abortion rights advocates represented by the ACLU, filed a new legal challenge just after Georgia’s law came into force in July.

Their legal challenge argued that the law violated the state of Georgia’s constitutional right to privacy and claimed that since Kemp had enacted HB 481 when Roe v. Wade was still a federal precedent. The lawsuit did not challenge the law’s so-called personality provisions.

McBurney, who held a two-day trial last month, agreed that lawmakers need to start over, but he didn’t address whether a six-week abortion ban violates a woman’s right to privacy under the state constitution.

“Whether the Georgian constitution allows for a post-heartbeat ban (with certain exceptions for medical emergencies, rape, etc.) is not decided here because it is not (yet) the law in Georgia,” he wrote. “Our state legislatures are now free, under Dobbs, to deviate from a post-viability prohibition to strike a different balance between the interests of fetal life and the woman’s physical autonomy, should they conclude that it is best for.” the Georgians is.”

Anthony Michael Kreis, a law professor at Georgia State University, said Georgia is an outlier to other states that have passed similar legislation in anticipation of a more conservative US Supreme Court hearing Roe v. Wade will pick up.

Georgia’s constitution contains a provision that prevents its lawmakers from passing laws that are unconstitutional at the time of their passage — and that provision is not included in most state constitutions, Kreis said.

“One of the reasons for this is that people owe and are entitled to due process, and they should know exactly what the laws are and what the law requires of them,” Kreis said. “And there is also a principle of legislative responsibility here. Lawmakers should enact public policies that they believe in good faith can be enforced immediately, and so there is an element of political accountability as well.”

McBurney said he would later rule on whether a provision allowing local prosecutors to obtain a patient’s medical records violates the state’s constitutional right to privacy.

Georgia Recorder senior reporter Stanley Dunlap contributed to this story.

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