Georgia judge strikes down state’s abortion ban as unconstitutional. Will it last?

The state’s abortion law, which took effect in 2022, was deemed in violation of Georgia’s constitution. Judge Robert McBurney wrote in his order “liberty in Georgia includes ... the power of a woman to control her own body.” 

First Look

A Georgia judge on Monday struck down the state’s abortion law, which took effect in 2022 and effectively prohibited abortions beyond about six weeks of pregnancy.

Fulton County Superior Court Judge Robert McBurney wrote in his order that the law violates Georgia’s Constitution, finding 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.”

When the U.S. Supreme Court overturned Roe v. Wade in 2022 and ended a national right to abortion, it opened the door for state bans. Thirteen states now bar abortion at all stages of pregnancy, with some exceptions. Georgia was one of four where bans begin after about the first six weeks of pregnancy – often before women realize they’re pregnant.

Mr. McBurney’s ruling would allow abortions through at least 20 weeks of pregnancy.

Kara Murray, a spokesperson for Georgia Attorney General Chris Carr, said he would immediately appeal to the state supreme court. The state high court earlier reversed a separate ruling by Mr. McBurney that had struck down the law on different grounds and could put Sept. 30’s ruling on hold pending an appeal.

“We believe Georgia’s life act is fully constitutional,” Ms. Murray said.

The bans have been felt deeply in the South because many people live hundreds of miles from states where abortion procedures can be obtained legally. If the Georgia ruling stands, it could open new avenues to access abortion not only in Georgia, but for people in nearby states.

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

Mr. Kemp has in the past tried to soften its political impact by trying to focus on the health of mothers. On Sept. 30, he attacked the ruling.

“Once again, the will of Georgians and their representatives has been overruled by the personal beliefs of one judge,” Mr. Kemp said in a statement. “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.”

Carol Tobias, president of the National Right to Life Committee, called the ruling “ridiculous.”

“This judge is an activist judge who is ignoring higher court rulings to do what he wants,” she said in an interview. “And I don’t think it’s going to stand.”

Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, one of the plaintiffs in the lawsuit, celebrated the ruling.

“Since we’ve seen these direct attacks here in the South, in particular, on abortion access, we have been in a deep defensive posture for a really long time,” she said. “It feels like our work has not been in vain.”

While carafem, an abortion provider in Atlanta, plans to expand its services as permitted over the next several weeks, co-founder Melissa Grant said she fears a reversal.

“Staff and clients will be living with this possibility hanging over immediate change, and that can be devastating to people who are trying to plan their lives and try to take care of their health,” Ms. Grant said.

Kwajelyn Jackson, executive director of Feminist Women’s Health Center, another Atlanta abortion provider, said they “will not be turning patients away based on the presence or absence of fetal cardiac activity, and so for as long as we are able, we’re hopeful that we’ll be able to care for patients who need services from us.”

Georgia’s law prohibited most abortions once a “detectable human heartbeat” was present. Cardiac activity can be detected by ultrasound in an embryo’s cells that will eventually become the heart at around six weeks into a pregnancy.

Before the law kicked in, there were more than 4,400 abortions each month in Georgia. That has dropped a monthly average of about 2,400 since the ban began in 2022, according to data from the Society of Family Planning.

The ruling means the law in the state reverts to its prior status, allowing abortions until roughly 20 weeks into a pregnancy, Mr. McBurney wrote.

The right to privacy in the Georgia Constitution includes the right to make personal healthcare decisions, he wrote.

“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,” Mr. McBurney wrote.

An “arbitrary six-week ban” on abortions “is inconsistent with these rights and the proper balance that a viability rule establishes between a woman’s rights of liberty and privacy and society’s interest in protecting and caring for unborn infants,” the order says.

Claire Bartlett, executive director of the Georgia Life Alliance, expressed confidence that the Georgia Supreme Court would again overturn Mr. McBurney, saying he wrongly attempted “to create a right to abortion out of whole cloth by finding that it resides in our Constitution.”

“It’s just ironic that based on his decision on Georgia’s constitutional protection against a person being deprived of life, liberty, or property, which is what the argument was, that he chose to focus on a woman’s right to liberty rather than the child’s right to life,” Ms. Bartlett said.

In part because Georgia has no way for citizens to place initiatives on the ballot, there’s no referendum on abortion rights scheduled for Georgia’s election this year. But Democrats have focused on abortion as they appeal to women and suburbanites.

On Sept. 20, Vice President Kamala Harris visited Atlanta to cast Republican Donald Trump as a threat to women’s freedom and lives, warning Mr. Trump would limit abortion access even more if reelected. It’s also a key issue in state legislative races as Democrats try to cut into Republican majorities.

Ms. Harris’ visit came after ProPublica reported that two women in the state died after they didn’t get proper medical treatment for complications from taking abortion pills to end their pregnancies. Democrats argue such deaths were a predictable outcome of restrictive laws.

Ms. Harris has been outspoken on abortion rights ever since the Supreme Court’s decision more than two years ago.

This story was reported by The Associated Press. AP writers Charlotte Kramon in Atlanta and Geoff Mulvihill in Philadelphia contributed reporting.