Judge lifts Georgia’s abortion ban by 6 weeks

ATLANTA — A judge overturned Georgia’s ban on abortion from about six weeks into pregnancy, ruling Tuesday that it violated the U.S. Constitution and U.S. Supreme Court precedent when it was enacted three years ago, and therefore invalid.

Fulton County Superior Court Judge Robert McBurney’s decision took immediate effect statewide, although the attorney general’s office said it had appealed. The ban has been in effect since July.

The American Civil Liberties Union of Georgia, which represented doctors and advocacy groups who urged McBurney to scrap the law, said it expects abortions at six weeks’ gestation to resume at some clinics on Wednesday.

Her lawsuit, filed in July, sought to overturn 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 this claim.

Instead, his decision was consistent with another argument in the lawsuit — that the ban was invalid because it was precedent set by the U.S. Supreme Court under Roe when it was signed into law in 2019. v. Wade and another ruling allowed abortions well beyond six weeks.

Kara Richardson, a spokeswoman for Georgia Attorney General Chris Carr, said in an email that the office has appealed and “will continue to fulfill our duty to defend our state’s laws in court.”

ACLU of Georgia executive director Andrea Young said Tuesday was a “great day for Georgia women and for all Georgians.”

“Today, her right to make decisions about her own body, her health and her families will be affirmed,” Young said in a statement.

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

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

Rep. Ed Setzler, the Acworth Republican who backed the law, said he was confident the Supreme Court would overrule McBurney and reinstate the ban.

The law banned most abortions once a “detectable human heartbeat” was present. Heart activity can be detected by ultrasound in cells within an embryo, which eventually become the heart about six weeks into pregnancy. This means that most abortions in Georgia were effectively banned at a time before many people knew they were pregnant.

The Georgia law was passed by state legislatures in 2019 and signed by Kemp, but was blocked from enactment until the Supreme Court ruled on Roe v. Wade, who 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’s decision in June.

Abortion clinics remained open, but providers said they were turning away many people because heart activity had been detected. They 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 worries women who are being denied the procedure and confuses doctors.

McBurney wrote in his ruling that when the law was enacted, “everywhere in America, including Georgia, it was clearly unconstitutional for any government – federal, state or local – to ban abortion before it is practical.”

Therefore, the law of the state “did not become Georgia law when it was enacted, and it is not Georgia law now,” he wrote.

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

McBurney has left the door open for lawmakers to reconsider the ban.

After the Supreme Court Roe v. Wade, the 2019 abortion ban “may one day become Georgia law,” he wrote.

But, he wrote, that can only be done after the General Assembly “determines, under the keen eye of the public, which will no doubt and properly attend so important and momentous a debate, whether the rights of unborn children include such a limitation of the woman’s right to physical… justify autonomy and privacy.”

The Georgian ban included exceptions for rape and incest as long as a police report was filed, and later allowed abortions when the mother’s life was in danger or a serious medical condition rendered a fetus nonviable.

At the October trial, state witnesses disputed claims that the law was unclear as to 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 Georgia’s US Senate contest between Democrat Raphael Warnock and Republican Herschel Walker, which is now heading for a runoff in December. Two women accused Walker, who opposes abortion, of paying them for the procedure. Walker vehemently denies this.

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