Nearly 75 percent of Georgians—including 62 percent of Republicans—don't want to see abortion criminalized before viability.Krisztian Elek/SOPA/Sipa/AP
Two weeks after the deaths of two Georgia women highlighted the very real risks to maternal health posed by the state’s six-week abortion ban, a judge has thrown out that draconian law, declaring it unconstitutional in a remarkable ruling that drips with sarcasm and rage. It’s a resounding legal victory in a key swing state that is likely to reverberate throughout the South—at least temporarily.
“A review of our higher courts’ interpretations of ‘liberty’ demonstrates that liberty in Georgia includes…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 health care choices,” Fulton County Superior Court Judge Robert McBurney wrote in a 26-page order issued Monday. “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,” he added.
“Women are not some piece of collectively owned community property the disposition of which is decided by majority vote,” McBurney writes. “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.”
“Forcing a woman to carry an unwanted, not-yet-viable fetus to term violates her constitutional rights.”
Before Roe v. Wade was overturned, abortion was legal in Georgia until the fetus was viable—around 22 weeks. Lawmakers first passed the six-week ban, known as the LIFE Act, in 2019, but courts blocked it until the Supreme Court’s Dobbs decision in 2022. The six-week ban has been the subject of litigation ever since, even as the Georgia Supreme Court upheld it in 2023. Now, according to McBurney’s ruling, “the law of Georgia reverts to what was (and remains) constitutional in this State” before 2019.
McBurney called the ban’s exception for rape and incest, which requires victims to file a police report, “a peculiarly cynical proviso.”
He was just as scornful of the ban’s insistence that medical exceptions should only be granted for life-threatening physical health issues. “There is no basis—rational, compelling, or sensical—to distinguish between diagnosed medical emergencies involving the brain (an essential human organ if ever there was one) versus the heart or the lungs or the liver,” McBurney wrote. “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.”
And he threw in a few more zingers, just for good measure.
[Women] alone should choose whether they serve as human incubators for the five months leading up to viability. 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 outside the womb any more so than society could—or should—force them to serve as a human tissue bank or to give up a kidney for the benefit of another.
The ruling comes as the deaths of Amber Thurman and Candi Miller, first reported in ProPublica, has thrust Georgia to the center of the national conversation about the impact of abortion restrictions and bans in the post–Roe era. Days after the ProPublica stories, Vice President Kamala Harris visited Atlanta to highlight the threat that Donald Trump poses to reproductive freedom, and Thurman’s mother and sisters appeared with Harris in an emotional town hall hosted by Oprah Winfrey.
Nearly three-quarters of Georgians—including 62 percent of Republicans and 83 percent of Democrats—want abortion to be legal before the point of fetal viability, according to a University of Maryland poll in early September. But Georgia, like many of its neighbors in the South, does not allow residents to weigh in on the issue via the type of voter initiatives that are on the ballot in 10 states this November, including Nevada and Arizona.
“This afternoon’s court ruling marks a critical milestone for Georgians and supporters of reproductive justice who have remained steadfast in their vision of a Georgia free from abortion bans,” said Shanté Wolfe, Southeastern field director for the advocacy group URGE. “The court’s move is a testament to the power of collective action, driven by activists, organizers, legislators, and most importantly, everyday people.”
“We have known that Georgians overwhelmingly support abortion, and today we see that it is indeed possible for our state’s laws to reflect the majority,” Wolfe said.
Even so, no one expects McBurney—who was first appointed to the bench by former GOP governor Nathan Deal in 2012—to have the last say. “We believe Georgia’s LIFE Act is fully constitutional,” Kara Murray, communications director for Republican Georgia Attorney General Chris Carr, said in a statement Monday that promised an immediate appeal.
“Once again, the will of Georgians and their representatives has been overruled by the personal beliefs of one judge,” Governor Brian Kemp echoed in his own press release. “Georgia will continue to be a place where we fight for the lives of the unborn.”
