Georgia’s Six-Week Abortion Ban Held to Violate Women’s Rights

Georgia’s LIFE Act “infringes upon a woman’s fundamental rights to make her own healthcare choices and to decide what happens to her body, with her body, and in her body,” a state trial court judge said Monday.

And the ban isn’t narrowly tailored to serve a compelling state interest, the judge said, striking down a law that prohibits abortions after about six weeks’ gestation.

Women have a right to privacy embodied in the Georgia Constitution’s fundamental protection for life and liberty, Judge Robert C.I. McBurney, of the Georgia Superior Court, Fulton County, said. And 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,” he said.

The decision is a victory for reproductive rights at a time when many states limited them after the US Supreme Court declared in Dobbs v. Jackson Women’s Health Organization that there’s no federal constitutional right to abortion. Over a dozen states have imposed restrictions on people’s ability to end pregnancies before viability, even when they pose health problems, according to the Guttmacher Institute, which tracks the laws.

McBurney said that the Living Infants Fairness and Equality Act’s six-week ban wasn’t narrowly tailored to serve the state’s “compelling interest in protecting ‘unborn’ life.” Until “that life can be sustained by the State—and not solely by the woman compelled by the Act to do the State’s work—the balance of rights favors the woman,” he said.

“It is not for a legislator, a judge, or a Commander from The Handmaid’s Tale to tell these women what to do with their bodies during this period when the fetus cannot survive,” he said. Until that time, “a woman’s right to make decisions about her body and her health remains private and protected, i.e., remains her business and her business alone,” McBurney said.

Prior Georgia law that tied the right to abortion to a fetus’ ability to live independently outside the womb struck “the proper balance between the woman’s right of ‘liberty of privacy’ and the fetus’s right to life,” the judge added.

McBurney also found that the law violates the Georgia Constitution’s equal protection clause because its life-saving exception differentiates between women with different medical conditions.

“A law that saves a mother from a potentially fatal pregnancy when the risk is purely physical but which fates her to death or serious injury or disability if the risk is ‘mental or emotional’ is patently unconstitutional,” he said.

Caplan Cobb LLP, ACLU of Georgia, and Bondurant Mixson & Elmore LLP represent the plaintiffs. The Georgia Attorney General’s Office and Schaerr Jaffe LLP represent the state.

The case is SisterSong Women of Color Reprod. Justice Collective v. State, Ga. Super. Ct., No. 2022CV367796, 9/30/24.