Fulton county judge issues order that abortions must be regulated as they were before law took effect in 2022

A Georgia judge on Monday struck down the state’s six-week abortion ban, ruling that the ban is unconstitutional and blocking it from being enforced.

In a 26-page opinion, the 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 ban was blocked as long as Roe v Wade was the law of the land, but went into effect after the US supreme court overturned Roe in 2022.

“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,” McBurney wrote.

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. Although the Roe line of jurisprudence was supposed to prevent states from banning abortion prior to fetal viability, Georgia and several other states did so anyway even before Roe fell.

Under the six-week ban, providers could not perform abortions if they detected fetal cardiac activity, which emerges at about six weeks into pregnancy. Many women, McBurney wrote, do not even know they are pregnant at six weeks.

“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,” McBurney wrote. “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.”

In a footnote, McBurney added: “There is an uncomfortable and usually unspoken subtext of involuntary servitude swirling about this debate, symbolically illustrated by the composition of the legal teams in this case. It is generally men who promote and defend laws like the Life Act, the effect of which is to require only women – and, given the socio-economic and demographic evidence presented at trial, primarily poor women, which means in Georgia primarily black and brown women – to engage in compulsory labor, ie, the carrying of a pregnancy to term at the government’s behest.”

McBurney’s ruling 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. In statements after McBurney’s ruling, abortion rights supporters highlighted Thurman and Miller’s deaths.

“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 Monday’s 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.”

Georgia’s attorney general, Republican Chris Carr, could appeal the case to the state supreme court and ask it to reinstate the six-week ban. The supreme court previously let the ban take effect at an earlier stage in the case.