Fulton County Superior Court Judge Robert McBurney has ruled that Georgia’s ban on abortions after six weeks is unconstitutional.
Georgia Attorney General Chris Carr said the state would appeal immediately.
House Bill 481, which passed by one vote in the Georgia House and which Gov. Brian Kemp signed into law in 2019, was one of the strictest abortion bans in the country. It cut the time a pregnant person has to seek an abortion from 20 weeks to six weeks. Most pregnant people (meaning both cis women and trans men who retain internal female reproductive organs) don’t even know that they are pregnant at six weeks.
The bill also gave prosecutors open access to the medical records of abortion patients. Georgia’s state constitution guarantees some of the nation’s strongest privacy rights.
During the governor’s race, Kemp refused to say whether he intended to see through a more-restrictive abortion ban if he won the election.
The ruling renders the law null and void. The court noted that members of the Gold Dome should carefully consider “the important policy question of how Georgians weigh privacy rights, bodily autonomy and fetal rights…in light of the many legal, political, and societal developments since the LIFE Act was passed.”
Abortion rights advocates argue that the decision of whether or not to have an abortion is a private matter between patient and doctor. Georgia State University law professor Anthony Michael Kreis explained Georgia’s privacy rights as part of a July 21 opinion column in the Savannah Morning News: “In a 1905 decision, Pavesich v. New England Life Insurance Company, the Georgia Supreme Court recognized a sweeping right of Georgians to keep their lives shielded from public scrutiny and unjustified state intervention. Under the state constitution, Georgians have a robust right ‘to be let alone’ and the ‘right to withdraw from the public gaze.'” According to Kreis, “Georgia has the longest constitutional tradition of protecting a right to privacy in the United States.”
McBurney wrote, “Sections 4 and 11 of the LIFE Act were plainly unconstitutional when drafted, voted upon, and enacted. They are therefore void ab initio [from the beginning] and of no effect, The State and any of its agents, to include any County, Municipal, or other local authority, are hereby ENJOINED from seeking to enforce in any manner the post-heartbeat ban on abortion procedures in Georgia because there is no legal basis for them to do that which is not the law of this State. These entities are to be guided by the language of the version of O.C.G.A. 16-12-141 in effect at the time the LIFE Act was passed. It is attached to this Order for ease of reference.”
Carr said in the Atlanta Press Club Loudermilk Debate with Democrat Jen Jordan and Libertarian Martin Cowen that “The attorney general cannot sue the state of Georgia—it defends the state of Georgia.” Atlanta Magazine’s Rachel Garbus reports that, according to Kreis, Carr could decline to defend a law that violates the Georgia Constitution.
Jordan noted that Georgia voters had last ratified the state constitution in 1982, “with a right of privacy that had been recognized and that voters knew encompassed the actual right to access abortion care or reproductive health care. So that’s why I think it runs afoul of the state constitution, no matter what the Supreme Court did with respect to the reversal of Roe v. Wade.”
On Twitter, Jordan posted this response to today’s ruling:
Just incredible.— Jen Jordan (@senatorjen) November 15, 2022
So, what does this all mean? Well, pretty simply – it is uncontroverted that Georgia’s 6-week abortion ban was unconstitutional under existing Supreme Court precedent (i.e., Roe v. Wade et al.) at the time it was passed by the General Assembly in 2019. 1/5 https://t.co/cLC4RokZmR
We’ve asked the Clayton County Georgia Republican Party, which backs a pro-life stance, how it looks at the right to privacy in terms of abortion and will update with any response.
Many voters promised to seek out pro-choice candidates for office in the midterm elections, regardless of party affiliation.
In the U.S. Senate race, Sen. Raphael Warnock has said he is pro-choice and that a doctor’s office “is too narrow and small and cramped space for a woman, her doctor and the United States government.” GOP challenger Herschel Walker, who has said he is pro-life, denies that he paid for two women to have abortions, calling the women’s allegations “a lie.” Both men face a runoff election December 6, with early voting to start Monday, Nov. 28.