Georgia’s 6-week abortion ban struck down by judge: NPR


Fulton County Superior Court Judge Robert McBurney instructed potential jurors during the trial to empanel a special purpose grand jury on May 2, 2022, in Atlanta. McBurney overturned Georgia’s ban on abortions starting around six weeks into pregnancy, ruling on Tuesday, November 15, 2022 that it violated the US Constitution and US Supreme Court precedent when it was enacted and was therefore invalid.

Ben Gray/AP


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Ben Gray/AP


Fulton County Superior Court Judge Robert McBurney instructed potential jurors during the trial to empanel a special purpose grand jury on May 2, 2022, in Atlanta. McBurney overturned Georgia’s ban on abortions starting around six weeks into pregnancy, ruling on Tuesday, November 15, 2022 that it violated the US Constitution and US Supreme Court precedent when it was enacted and was therefore invalid.

Ben Gray/AP

ATLANTA — A judge struck down Georgia’s ban on abortions starting around six weeks into pregnancy, ruling Tuesday that it violated the U.S. Constitution and U.S. Supreme Court precedent when it was passed three years ago and was therefore invalid.

The ruling by Fulton County Superior Court Judge Robert McBurney took effect immediately statewide, although the state attorney general’s office said it has filed an appeal. The ban had been in effect since July.

The American Civil Liberties Union of Georgia, which represented doctors and advocacy groups that asked McBurney to repeal the law, said it expected abortions after six weeks of pregnancy to resume Wednesday at some clinics.

Their 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 mandating pregnancy and childbirth for women in the state. McBurney did not rule on that claim.

Instead, his ruling agreed with a different argument made in the case — that the ban was invalid because, when signed into law in 2019, the US Supreme Court’s Roe precedent. v. Wade and another ruling allowed abortion after six weeks.

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

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

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

Andrew Eisenher, a spokesman for Republican Gov. Brian Kemp, said McBurney’s decision put “a judge’s personal convictions above the will of the Georgia Legislature and the 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.

Congressman Ed Setzler, the Republican from the Atlanta suburb of Acworth who sponsored the law, said he was confident the state Supreme Court would overturn McBurney and reinstate the ban.

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

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The Georgia law was passed by state lawmakers and signed by Kemp in 2019, but was blocked from taking effect until the Supreme Court overturned Roe v. Wade, which protected abortion rights for nearly 50 years.

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

Abortion clinics remain open, but providers say they are turning away many people because a heartbeat has been detected. They can then either travel to another country for an abortion or continue their pregnancy.

During a two-day trial in October, abortion providers told McBurney that the ban worries women who deny the procedure and confuses doctors.

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

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

The state argued that the Roe decision itself was flawed and that the Supreme Court decision overruled it.

McBurney left the door open for the Legislature to revisit the ban.

Now that the Supreme Court has struck down Roe v. Wade, the 2019 law’s abortion ban “may someday become Georgia law,” he wrote.

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

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

During the trial in October, witnesses for the state disputed the claim that the law is unclear about when doctors can step in to perform a late-term abortion. They also argue that abortion itself can harm women.

Abortion has been a central issue in the Georgia Senate race between Democrat Raphael Warnock and Republican Herschel Walker, which is now headed for a December runoff. Two women accused Walker, who opposes abortion, of paying them for the procedure. Walker flatly denied this.

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