Georgia's Abortion Ban: A Legal Analysis

Georgia's abortion law, also known as the Life Act or the Heartbeat Law, has been a topic of debate and legal challenges in recent years. The law, passed in 2019 and enforced in 2022, prohibits abortions after six weeks of pregnancy, which is often before women realize they are pregnant. This law has sparked controversy and raised questions about the balance between a woman's rights and the state's interest in protecting unborn infants. In September 2024, a judge in Fulton County, Georgia, declared the law unconstitutional, citing the right of women to control their bodies and make personal healthcare decisions. However, the Georgia Supreme Court later halted this ruling and allowed the six-week limit to stand while considering the state's appeal. The legal battle over abortion rights in Georgia continues, with abortion providers and advocates expressing concern about the impact of these restrictions on women's health and lives.

Georgia's abortion law prohibits abortions after six weeks of pregnancy

Georgia's abortion law, the Life Act, prohibits abortions after six weeks of pregnancy. The law was passed in 2019 but only came into force in 2022 after the US Supreme Court overturned Roe v Wade. This opened the door for state bans, and Georgia was one of several Republican-controlled states to severely limit access to abortion procedures.

The Life Act bans abortion after a "detectable human heartbeat" is present, which can be as early as six weeks into a pregnancy. Many women do not even know they are pregnant at this stage. The law was ruled unconstitutional by a Fulton County Superior Court Judge, Robert McBurney, in September 2024. He stated 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 health care choices".

Judge McBurney's decision nullified the Life Act, and Georgia must now allow abortions up to 22 weeks of pregnancy, which is the limit of viability. This is the point at which a fetus can survive outside the womb, and society can assume care and responsibility for that separate life. The previous law, in place before the Life Act, allowed abortions until this point of viability.

The Georgia Supreme Court initially allowed the six-week limit to stand, and the state has appealed Judge McBurney's ruling. The case will now return to the trial court, which is yet to rule on the remaining claims brought by the plaintiffs—a coalition of physicians, reproductive health centers, and reproductive justice advocates. They argue that the ban violates Georgians' rights to privacy and equal protection under the state Constitution.

The debate around abortion in Georgia has been ongoing, with abortion rights supporters protesting the ban in Atlanta in 2022. The state's attorney general, Republican Chris Carr, could appeal the case to the state supreme court and ask for the six-week ban to be reinstated.

The law was passed in 2019 but only came into force in 2022

Georgia's abortion law, the Life Act, was passed in 2019 but only came into force in 2022. The law, which was signed by Governor Brian Kemp, prohibits abortions after cardiac activity is detected in the foetus, which usually occurs around six weeks into a pregnancy.

The law was blocked by a federal judge in October 2019, before it went into effect, as it was deemed to violate the right to abortion established by Roe v. Wade in 1973. However, in June 2022, the Supreme Court overturned Roe v. Wade, clearing the way for Georgia's abortion law to take effect.

The law faced legal challenges, with abortion providers and advocates arguing that it violated Georgians' rights to privacy and equal protection under the state Constitution. In September 2024, Fulton County Superior Court Judge Robert McBurney ruled that the law was unconstitutional, stating that "liberty in Georgia includes in its meaning...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".

Despite Judge McBurney's ruling, the Georgia Supreme Court allowed the six-week abortion ban to remain in effect as the legal challenge continued. The case returned to Judge McBurney, who again found that the law violated the state constitution, leading to the ban being struck down in October 2024.

A Georgia judge has struck down the state's abortion law

Fulton County Superior Judge Robert McBurney ruled that the law is unconstitutional and violates the state's constitution, specifically the right to liberty and privacy. In his 26-page opinion, Judge McBurney wrote 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." He added that abortions should be allowed until a fetus is viable, which tends to occur around 24 weeks into a pregnancy.

The decision is a significant victory for abortion rights supporters in Georgia, who have been protesting the law since it was passed in 2019. The original lawsuit was filed by the SisterSong Women of Color Reproductive Justice Collective, along with other plaintiffs. Monica Simpson, the executive director of SisterSong, highlighted the preventable deaths of two Georgia women, Amber Nicole Thurman and Candi Miller, due to the abortion ban.

However, the ruling is expected to be appealed by Georgia's Attorney General, Republican Chris Carr, who could ask the state supreme court to reinstate the six-week ban. The supreme court previously allowed the ban to take effect at an earlier stage in the case. Gov. Brian Kemp, who signed the law in 2019, criticized the ruling, stating that it went against the will of Georgians and their representatives.

The decision has broader implications for abortion access in the US South, where several Republican-controlled state legislatures have passed similar restrictive abortion laws. If the Georgia ruling stands, it could provide a pathway for legal abortion access not only in Georgia but also for people in nearby states.

The ruling could open up abortion access in the US South

A Georgia court has struck down the state's abortion ban, allowing care to resume. The ruling could open up abortion access in the US South, where several Republican-controlled state legislatures have passed laws severely limiting access to abortion procedures.

Fulton County Superior Judge Robert McBurney ruled that the state's abortion laws must revert to what they were before the six-week ban, known as the Life Act, was passed in 2019. The law was blocked as long as Roe v Wade was the law of the land, but it went into effect after the US Supreme Court overturned Roe in 2022.

The ruling means abortions are now legal in Georgia up until about 22 weeks of pregnancy, the point at which Georgia permitted abortions prior to the Life Act. However, fetal viability tends to occur closer to 24 weeks of pregnancy.

The decision by Judge McBurney arrives weeks after ProPublica reported that two Georgia women, Amber Nicole Thurman and Candi Miller, died after being unable to access legal abortions in the months after Roe was overturned.

"We are encouraged that a Georgia court has ruled for bodily autonomy," said Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, a plaintiff in the case that led to the ruling. "At the same time, we can't forget that every day the ban has been in place has been a day too long – and we have felt the dire consequences with the devastating and preventable deaths of Amber Nicole Thurman and Candi Miller."

The Georgia Supreme Court had previously allowed the six-week ban to take effect, but Judge McBurney's recent ruling found that it violated the state constitution and the right to liberty of privacy, which includes the right to make personal healthcare decisions.

Gov. Brian Kemp's office criticised the ruling, saying, "Once again, the will of Georgians and their representatives have been overruled by the personal beliefs of one judge. Protecting the lives of the most vulnerable among us is one of our most sacred responsibilities, and Georgia will continue to be a place where we fight for the lives of the unborn."

Abortion providers and advocates in Georgia applauded the ruling

The judge's decision was met with relief and gratitude by abortion providers and advocates, who had been fighting for reproductive justice and the protection of women's rights. The ruling affirmed the right of women to make their own healthcare decisions and have control over their bodies.

One abortion provider, carafem, an Atlanta-based organisation, expressed their dismay at the previous law, which had restricted their services. They stated that they would continue to offer abortion services following the letter of the law but remained angry and disappointed with the restrictions on abortion access.

Another advocate, Monica Simpson, the executive director of SisterSong Women of Color Reproductive Justice Collective, highlighted the devastating consequences of the ban, including the deaths of two Georgia women, Amber Nicole Thurman and Candi Miller, who were unable to access legal abortions. Simpson emphasised the suffering caused by the ban and the violation of people's bodily autonomy and health.

The ruling was a significant victory for abortion rights supporters in Georgia, who had been protesting the state's abortion ban since it took effect in 2022. However, they also expressed concern that the ruling could be short-lived, as the state's Republican attorney general, Chris Carr, quickly appealed the decision.

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