Abortions after the sixth week of pregnancy are currently legal in Georgia after a state trial judge ruled that the so-called “heartbeat” ban is void because it was unequivocally unconstitutional when it was adopted in 2019.
Fulton County Superior Court Judge
“In Georgia, it is fundamental that '[l]egislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them,’” McBurney wrote in Tuesday’s opinion. The constitutionality of a law, moreover, is to be determined on the date of its passage by lawmakers, he said.
The law banning abortions before viability, after embryonic cardiac activity is detected, was illegal under controlling US Supreme Court precedent at the time of its enactment and, therefore, “is forever void,” McBurney said. Subsequent events, such as the top court’s overruling of that precedent in Dobbs v. Jackson Women’s Health Organization, make no difference, he said.
The six-week ban may someday be the law in Georgia, McBurney said. But that will require the state legislature to determine “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 said.
Other Challenged Provisions
McBurney also shot down a provision that required providers to report performing an abortion after detecting a fetal heartbeat, but he left in place a provision of the law that requires doctors to perform ultrasound examinations before an abortion.
McBurney previously denied a motion to block the law’s enforcement pending trial, saying he didn’t have the power to issue an injunction before hearing the case on the merits.
The law at issue made exceptions for cases of medical emergencies, rape, or incest where there’s an official police report. Physicians who violate the law faced a potential prison sentence of one to ten years, loss of their medical licenses, and civil suits by patients.
Abortion advocates, including a group representing women of color, sued Georgia in state court to stop it from enforcing three amendments to Georgia’s LIFE Act. HB 481 violates the Georgia Constitution’s rights to privacy, liberty, and equal protection, according to SisterSong Women of Color Reproductive Justice Collective, Feminist Women’s Health Center, Planned Parenthood Southeast Inc., and others.
McBurney invalidated two of three provisions, but refused to weigh in on the state constitutional issue. Whether a post-heartbeat ban violates Georgia’s constitution can’t be decided at present because it isn’t yet the law in the state, he said.
Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.
Bondurant Mixson & Elmore LLP, Caplan Cobb LLC, American Civil Liberties Union Foundation Inc., American Civil Liberties Union Foundation of Georgia Inc., Center for Reproductive Rights, and Planned Parenthood Federation of America represent the plaintiffs.
The case is Sistersong Women of Color Reproductive Justices Collective v. State, Ga. Super. Ct., No. 2022CV367796, 11/15/22.