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Georgia judge strikes down six-week abortion ban

Following a two-day bench trial, the Atlanta-area judge sided with abortion rights advocates and doctors who said the fetal heartbeat law violates the Georgia Constitution's right to privacy.

ATLANTA (CN) — A state judge on Tuesday overturned Georgia's ban on abortions as early as six weeks into pregnancy, ruling the law was unconstitutional and violated U.S. Supreme Court precedent at the time it was enacted.

Republican Governor Brian Kemp signed the law in 2019, but it was blocked from taking effect due to Roe v. Wade, the 1973 ruling that guaranteed the right to abortion nationwide.

It wasn't until three weeks after the Supreme Court overturned the nearly 50-year-old precedent in June that the 11th Circuit allowed the Peach State to begin enforcing its abortion law.

But in his ruling Tuesday, Fulton County Superior Court Judge Robert McBurney wrote that when the law was enacted, "everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability."

“And yet the LIFE Act, through Section 4, did just that,” the judge wrote.  

He added, “A doctor faced with a request to end a pre-viability pregnancy, i.e., at a time when the fetus absolutely could not survive outside the mother’s womb, would be committing a felony if she honored her patient’s wishes. Such bans were banned. Section 4 of H.B. 481 was void ab initio. It did not become the law of Georgia when it was enacted and it is not the law of Georgia now.” 

McBurney's ruling came after abortion rights advocates and doctors filed a lawsuit in July claiming the six-week ban violates the Georgia Constitution's right to privacy by forcing "pregnancy and childbirth upon countless Georgians" and prohibiting "medically appropriate care for patients suffering pregnancy complications and miscarriages." McBurney held a two-day bench trial in the case last month.

The law – known as the Living Infants Fairness and Equality, or LIFE, Act – bans most abortions once a “detectable human heartbeat” is present, although an embryo's heart is not actually formed yet at the six-week mark. It is merely the earliest point in which ultrasounds can detect electrical impulses from the cells inside an embryo, a point at which many women don't even know they are pregnant yet.

The challengers argued the LIFE Act invades privacy by granting state officials and district attorneys "virtually unfettered" access, without a subpoena, to the medical files of anyone who seeks an abortion.

McBurney agreed and found the state’s compelling interest behind the law is not narrowly tailored as to not impinge on Georgia’s constitutional privacy rights, and overreaches by empowering prosecutors “to obtain all health or hospital records of a patient.” 

At trial in a courtroom packed with women, Georgia Solicitor General Stephen Petrany said that the state’s privacy protections do not extend to abortion because it affects a “third party."

But Julia Kaye from the American Civil Liberties Union argued to the court there is no third person, because for at least the first five months of pregnancy, the embryo and then fetus is entirely dependent on the mother's body and could not survive outside of the womb.

The law would have allowed termination of pregnancies conceived by rape or incest only if a police report is filed, though a psychiatrist testified during the trial that most cases of these situations are never reported to the police.

It also included exceptions for late-term abortions when the mother’s life is at risk or a serious medical condition renders a fetus unviable, but doctors testified that fetal cardiac activity can still be detected in certain miscarriage situations, making it confusing for medical professionals deciding whether and when they can intervene.

“Under Dobbs, it may someday become the law of Georgia, but only after our Legislature determines 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,” McBurney wrote, referring to the Supreme Court’s decision in Dobbs v. Jackson Women's Health to overturn Roe.  

The state is expected to appeal.

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