Judge overturns Georgia law that bans abortion at around six weeks

A judge overturned Georgia’s ban on abortion starting around six weeks into a pregnancy, ruling Tuesday that it violated the U.S. Constitution and U.S. Supreme Court precedent when it was enacted and was therefore void.

Fulton County Superior Court Judge Robert McBurney’s ruling took effect immediately statewide, though the state attorney general’s office said it appealed it. The ban had been in effect since July.

It prohibited most abortions once a “detectable human heartbeat” was present. Cardiac activity can be detected by ultrasound in cells within an embryo that will eventually become the heart as early as six weeks into a pregnancy. That means most abortions in Georgia were effectively banned at a point before many people knew they were pregnant.

McBurney’s ruling came in a lawsuit filed in July by doctors and advocacy groups that sought to strike down the ban on multiple grounds, including that 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 that claim.

Instead, his decision agreed with a different argument made in the lawsuit — that the ban was invalid because when it was signed into law in 2019, U.S. Supreme Court precedent allowed abortion well past six weeks.

Kara Richardson, a spokesperson for Georgia Atty. Gen. Chris Carr, said in an email that the office filed a notice of appeal and “will continue to fulfill our duty to defend the laws of our state in court.”

Andrea Young, executive director of the ACLU of Georgia, said Tuesday was a “great day for Georgia women and for all Georgians.” The ACLU of Georgia was one of the groups that filed the case.

“Today their right to make decisions for their own bodies, health and families is vindicated,” Young said in a statement.

Andrew Isenhour, a spokesperson for Republican Gov. Brian Kemp, said McBurney’s ruling placed “the personal beliefs of a judge over the will of the legislature and people of Georgia.”

“The state has already filed a notice of appeal, and we will continue to fight for the lives of Georgia’s unborn children,” he said in a statement.

Georgia’s law was passed by state lawmakers and signed by Kemp in 2019 but had been blocked from taking effect until the Supreme Court overturned Roe vs. Wade, which had protected the right to an abortion for nearly 50 years.

The U.S. 11th Circuit Court of Appeals allowed Georgia to begin enforcing its abortion law just over three weeks after the high court’s decision in June.

Abortion clinics remained open, but providers said they were turning many patients away because cardiac activity had been detected. Those patients could then either travel to another state for an abortion or continue with their pregnancies.

During a two-day trial in October, abortion providers told McBurney the ban was causing distress to women denied the procedure and confusion among doctors.

McBurney wrote in his ruling that when the law was enacted, “everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state or local — to ban abortions before viability.”

He wrote that the state’s law “did not become the law of Georgia when it was enacted and it is not the law of Georgia now.”

The state had argued that the original Roe decision itself was wrong and that the Supreme Court ruling overturning it wiped it out of existence.

McBurney did leave the door open for the Legislature to revisit the ban.

Now that the Supreme Court has overturned Roe vs. Wade, the prohibition on abortions provided for in the 2019 law “may someday become the law of Georgia,” he wrote.

But that can happen only after the General Assembly “determines in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate whether the rights of unborn children justify such a restriction on women’s right to bodily autonomy and privacy,” he wrote.

Georgia’s ban included exceptions for rape and incest, as long as a police report was filed, and allowed for later abortions when the mother’s life was at risk or a serious medical condition rendered a fetus unviable.

At the October trial, witnesses for the state disputed the claim that the law was unclear about when doctors could intervene to perform a later abortion. They also argued that abortions themselves could harm women.

Abortion has been a central issue in Georgia’s U.S. Senate contest between Democrat Raphael Warnock and Republican Herschel Walker, which is now headed to a runoff in December. Two women accused Walker, who opposes abortion, of paying for them to have the procedure. Walker vehemently denied that.