The Incredible Ruling Striking Down Georgia's Anti-Choice Law

Fulton County Judge Robert McBurney just struck down the Georgia LIFE Act, which makes abortion after six weeks a felony. The filing is a stinging rebuke of the anti-choice law.

Today, a Fulton County judge struck down Georgia’s six week abortion ban as unconstitutional, and it’s full of incredible quotes up to and including the invocation of the Handmaid’s Tale. Before I dive into some of the content, let’s review how we got here.

The Plaintiffs in this case are suing to block certain provisions of Georgia’s “Living Infants Fairness and Equality Act”, also known as the LIFE Act - arguing that they are unconstitutional. In October 2022, the Court conducted a bench trial (no jury) during which the parties presented evidence in support of their opposing positions.

Pending at the time of the trial were:

1. A motion to dismiss filed by the State of Georgia and

2. A motion for partial judgment on the pleadings filed by the Plaintiffs

On 15 November 2022, the Court entered an Order granting in part the motion for partial judgment on the pleadings, finding that several challenged provisions of the LIFE Act were void because they were unconstitutional when passed. The State promptly appealed and the Supreme Court stayed this Court’s ruling while it considered the merits of the void.

On 24 October 2023, the Supreme Court issued its final opinion in which it reversed this Court’s ruling, abandoned decades of its own precedent, and remanded the case for a ruling on the merits of Plaintiffs’ constitutional claims. That’s what led to this ruling today.

The LIFE Act consists of sixteen sections, only three of which Plaintiffs challenge as infringing on their rights (or their members’ rights): Sections 4, 10, and 11.

Section 4 of the LIFE Act amended O.C.G.A. § 16-12-141 to, among other things, criminalize abortions occurring after the embryo generates a “detectable human heartbeat”, a development which both sides in this litigation agree typically occurs around six weeks after the mother’s last menstrual period.

Section 10 amended O.C.G.A. § 31-9B-2, concerning a physician’s obligations when performing abortions, to require doctors to make “a determination of the presence of a detectable human heartbeat … of an unborn child” before performing any abortion (absent a medical emergency or a medically futile pregnancy).

Finally, Section 11 amended O.C.G.A. § 31-9B-3 to add a requirement that any physician who performs an abortion after detecting a fetal heartbeat must report to the Department of Public Health the exception to the ban imposed by Section 4 of the Act that applied to justify the otherwise illegal procedure.

Here is how Judge McBurney frames the issue:

Whether one couches it as liberty or privacy (or even equal protection), this dispute is fundamentally about the extent of a woman’s right to control what happens to and within her body. The baseline rule is clear: a legally competent person has absolute authority over her body and should brook no governmental interference in what she does -- and does not do -- in terms of health, hygiene, and the like.

(There is the vaccine exception, wherein the government can condition some receipt of benefit (such as public education or Medicaid/Medicare coverage) on the administration of vaccines or other preventative medicine -- or outright mandate the treatment through a valid exercise of state police power.)

And the issue to be decided here: how to balance the rights of a not-yet-viable fetus against the rights of the only person in this great wide world who can -- by choice or by legislative imposition -- maintain that pregnancy until it is viable?

Judge McBurney writes:

While the State’s interest in protecting “unborn” life is compelling, 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.

Women are not some piece of collectively owned community property the disposition of which is decided by majority vote. 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.

And then he invokes the Handmaid’s Tale:

For these women, the liberty of privacy means that they 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. Considering the compelling record evidence about the physical, mental, and emotional impact of unwanted pregnancies on the women who are forced by law to carry them to term (as well as on their other living children), the Court finds that, until the pregnancy is viable, a woman’s right to make decisions about her body and her health remains private and protected.

When someone other than the pregnant woman is able to sustain the fetus, then -- and only then -- should those other voices have a say in the discussion about the decisions the pregnant woman makes concerning her body and what is growing within it.

He then addresses the mental health issues at hand:

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 violative of the equal protection rights of pregnant women suffering from acute mental health issues.

He concludes:

A review of our higher courts’ interpretations of “liberty” demonstrates 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.

Accordingly, Section 4 of the LIFE Act is hereby DECLARED unconstitutional. The State and all its agents, to include any County, Municipal, or other local authority, are once again ENJOINED from seeking to enforce in any manner the LIFE Act’s PECAP termination ban in Georgia. Because Section 4 is stricken and thus its amendments to O.C.G.A. § 16-12-141 are gone, Section 11 necessarily fails as well, as a woman does not require a legislatively bestowed exception to pursue a pre-viability PECAP termination. Finally, O.C.G.A. 16-12-141(f) is DECLARED unconstitutional. It, too, shall not be enforced by the State or any of its agents.

How this ruling plays with the Georgia Supreme Court is another matter. Professor Anthony Michael Kreis says it fails to “center legal history and the evolution of the common law in the analysis much at all, which is going to be a real missed opportunity-- and a limitation of its reach-- on appeal.”

You can read the full ruling here.

~AG