By Nathaniel Weixel - 09/30/24

Georgia’s “heartbeat” law banning abortion after six weeks is unconstitutional and can’t be enforced, a Fulton County superior judge ruled Monday.

The ruling permanently enjoined the law and stated that abortions must now be regulated as they were before Georgia’s 2019 law took effect in July 2022, meaning they are allowed until fetal viability at about 22 weeks of pregnancy.

Judge Robert McBurney said the state constitution’s guaranteed right to “liberty” includes a person’s right to make decisions about their own health care.

“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” and to reject state interference with her health care choices, he wrote.

“That power is not, however, unlimited. 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.

Monday’s ruling marks the second time McBurney has struck down Georgia’s abortion ban.

Georgia Gov. Brian Kemp signed the ban into law in 2019, but implementation had been blocked until the U.S. Supreme Court overturned Roe v. Wade in 2022.

The law banned abortion after fetal cardiac activity was detected, which is usually about six weeks, before many people know they are pregnant.

The law was challenged by abortion rights groups that same year, and McBurney initially ruled in their favor. But the state appealed, and the Georgia Supreme Court eventually reversed his ruling and sent the case back to be decided on the constitutionality argument.

McBurney wrote that the state’s LIFE Act “infringes upon a woman’s fundamental rights to make her own healthcare choices and to decide what happens to her body, with her body, and in her body,” so it needs to be narrowly tailored.

However, “there is nothing narrow about a law so blunt that it forces a woman to allow a fetus grow inside her for months after she has made the difficult and deeply personal decision not to bring the pregnancy to term,” he wrote.

A spokesperson for Kemp’s office didn’t directly say what the next steps will be, but he said the state “will continue to be a place where we fight for the lives of the unborn.”

“Once again, the will of Georgians and their representatives has 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,” spokesperson Garrison Douglas said.