Fulton County Superior Court Judge Robert C. I. McBurney has struck down Georgia’s six-week abortion ban. (Photo by Stanley Dunlap/Georgia Recorder)
Abortion providers in Georgia say they will expand their services immediately and are preparing for a potential influx of out-of-state patients after a Fulton County judge ruled Monday that Georgia’s six-week abortion ban is unconstitutional under the Georgia Constitution.
Fulton County Superior Court Judge Robert C. I. McBurney’s long-awaited ruling immediately overturned the state’s 2019 law, which took effect shortly after the U.S. Supreme Court ended the federal right to an abortion in 2022.
In a 26-page ruling, McBurney said women should have the freedom to decide whether to be “human incubators for the five months leading up to viability.”
“Women are not some piece of collectively owned community property the disposition of which is decided by majority vote,” McBurney wrote. “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.”
Georgia’s 2019 law bans most abortion once fetal cardiac activity is detected, which is about six weeks into a pregnancy and before most women know they are pregnant.
The ruling resurrects Georgia’s previous law, which allowed abortions up to about 20 weeks – at least for now. A spokesperson for GOP Attorney General Chris Carr said Monday that the state plans to appeal the decision.
“We believe Georgia’s LIFE Act is fully constitutional, and we will immediately appeal the lower court’s decision,” said Kara Murray, Carr’s communications director.
A spokesperson for Republican Gov. Brian Kemp also blasted the decision Monday. Kemp signed the abortion restrictions into law in 2019 after it narrowly passed the Legislature.
“Once again, the will of Georgians and their representatives has been overruled by the personal beliefs of one judge,” said Garrison Douglas, Kemp spokesperson. “Protecting the lives of the most vulnerable among us is one of our most sacred responsibilities, and Georgia will continue to be a place where we fight for the lives of the unborn.”
The decision comes two weeks following revelations that two pregnant women died while trying to have abortions in the months after Georgia’s six-week abortion ban took effect.
The ruling
This is the second time McBurney has labeled the law unconstitutional and stopped it from being enforced.
Nearly two years ago, McBurney concluded after a two-day trial that the law was “plainly unconstitutional” because it was passed in 2019 when Roe v. Wade was still the law of the land. He ruled that state lawmakers should have to draft abortion restrictions in the post-Roe world.
But the Georgia Supreme Court disagreed last year, settling one narrow piece of a legal challenge filed in state court in 2022 on behalf of health care providers and abortion rights advocates. The state’s high court let the six-week ban go back into effect within a week of McBurney’s first decision while the appeal was being considered.
Monday’s ruling addresses the broader question at the center of the lawsuit filed in 2022: Does the Georgia Constitution’s protections for liberty and privacy include a right to an abortion?
McBurney has concluded that it does – to a point.
“A review of our higher courts’ interpretations of ‘liberty’ demonstrates that liberty in Georgia includes in its meaning, in its protections, and in its bundle of rights the power of a woman to control her own body, to decide what happens to it and in it, and to reject state interference with her healthcare choices,” McBurney wrote.
“That power is not, however, unlimited,” he added. “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.”
McBurney found fault with the exceptions written into Georgia’s law, such as the medical emergency provision that supporters of the law say protects a woman who is in medical duress.
He said the exception is “susceptible to a vagueness challenge” and unconstitutionally treats women in mental health crisis different from patients experiencing a physical health threat.
“There is no basis – rational, compelling, or sensical – to distinguish between diagnosed medical emergencies involving the brain (an essential human organ if ever there was one) versus the heart or the lungs or the liver – all of which can result in serious bodily harm or death to the mother,” he wrote.
The lawsuit was filed by the American Civil Liberties Union, the ACLU of Georgia, the Center for Reproductive Rights, Planned Parenthood Federation of America, and Georgia-based law firms Caplan Cobb and Bondurant Mixson & Elmore.
‘Overwhelming need’
Providers said Monday that they will immediately expand their services.
“Effective immediately, in accordance with the law, we are providing and expanding our abortion health care,” Jaylen Black, vice president of communications and marketing of Planned Parenthood Southeast, said during a call with reporters Monday.
Kwajelyn Jackson, executive director of Feminist Women’s Health Center, said Monday that the Atlanta clinic is preparing for a potential influx of patients with a health care landscape that has changed. She said Georgia has lost at least one clinic since 2022.
“We will do our best to ensure that we have staff-to-patient ratios that are safe for folks who are coming to us for care,” she said. “And we will also always prioritize the wellbeing of our providers to make sure that we are not overworking people in order to meet an overwhelming need.”
Opponents of the law point to the deaths of Amber Nicole Thurman and Candi Miller as tragic proof of the law’s harm, though anti-abortion advocates have argued the law’s exceptions should have allowed them to receive the care they needed.
“We have already seen too many examples of the extreme harm and often deadly consequences of dangerous abortion bans on our communities, including the recent tragic stories of Amber Nicole Thurman and Candi Miller and the countless others unnamed that have been affected by bans like this one,” Jackson said.
Attorneys for the plaintiffs urged state officials to let McBurney’s ruling go unchallenged.
“Make no mistake, if Gov. Brian Kemp and Attorney General Chris Carr try to reinstate this cruel ban by appealing to the Georgia Supreme Court, they will be doing so knowing full well that this law is preventing physicians from treating sick patients, exacerbating the maternal mortality crisis for Black women, forcing Georgians to carry pregnancies that will tether them to poverty and abuse and making it harder for Georgia universities and hospitals to attract top doctors,” said Julia Kaye, senior staff attorney with the ACLU Reproductive Freedom Project.
Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, lead plaintiff in the lawsuit, argued the back-and-forth with the six-week ban signals that “our lives don’t matter.”
“Do they really care about the lives of Georgians or are they using the lives of Georgians as their political pawns to move whatever they feel like is their political agenda,” Simpson said.
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