Fulton County judge strikes down Georgia’s abortion ban

A Fulton County Superior Court judge ruled Tuesday that the state cannot enforce a 2019 Georgia law banning most abortions after about six weeks of pregnancy.  

Judge Robert McBurney’s ruling found key provisions of the abortion ban were void “ab initio,” or from the start, because they violate the U.S. Constitution – as it stood when the legislature passed and Republican Gov. Brian Kemp signed the law in 2019.

“At the time … it was unequivocally unconstitutional for governments – federal, state, or local—to ban abortions before viability,” wrote McBurney.  

McBurney found two key provisions of the Georgia law void: a provision allowing doctors to be charged with a felony for performing an abortion and a requirement that doctors report their rationales for “otherwise illegal” abortions to the state Department of Public Health.  

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McBurney’s order prohibits any state or local government official from enforcing the abortion law.  

But it leaves the door open for the General Assembly to reconsider the abortion issue in light of the U.S. Supreme Court’s decision last June to overturn the landmark 1973 abortion-rights decision Roe v. Wade. 

“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,” wrote McBurney.   

Georgia enacted House Bill 481, also known as the “heartbeat law” or the LIFE Act, three years ago. The plaintiffs in the lawsuit  – led by reproductive rights group SisterSong  –  challenged the law in federal court.  

After the U.S. Supreme Court’s decision overturning Roe v. Wade, a federal appeals court allowed the Georgia law to take effect in July. The pro-choice advocates then took their fight to Fulton County Superior Court, challenging the abortion ban on the ground that it violated both the federal and Georgia constitutions.

“Today’s ruling recognizes that the legislature’s decision to take away abortion access across our state was in clear violation of the law,” said Andrea Young, executive director of the American Civil Liberties Union of Georgia, which represented the plaintiffs in the case. “Today is a great day for Georgia women and for all Georgians. Today their right to make decisions for their own bodies, health, and families is vindicated.”  

The state, represented by the office of Republican Attorney General Chris Carr, has already filed an appeal with the Georgia Supreme Court, said spokeswoman Kara Richardson. Carr was re-elected to a second full term as attorney general last week.

“[We] will continue to fulfill our duty to defend the laws of our state in court,” added Richardson.

Abortion will also likely play a key role in the December U.S. Senate runoff between Democratic incumbent Raphael Warnock and Republican Herschel Walker. Warnock is pro-choice, while Walker has supported the Georgia abortion law. Walker has denied allegations that he paid for two ex-girlfriends’ abortions.  

This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.