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Judge overturns Georgia’s six-week abortion ban

A June demonstration outside the Georgia Capitol in Atlanta. (Ben Gray/AP)
4 min

A Fulton County judge has overturned Georgia’s six-week abortion ban, ruling that two key parts of the law “were plainly unconstitutional when drafted, voted upon, and enacted” and writing that the law cannot be enforced.

The 15-page ruling by Fulton County Superior Court Judge Robert McBurney stemmed from a lawsuit that argued the state’s “heartbeat bill” violated pregnant people’s liberty and privacy rights under Georgia’s constitution. The plaintiffs also argued that the law violated the U.S. Constitution at the time it was enacted — in 2019, when Roe v. Wade was still the law of the land.

“It’s just really important for Georgians to see these types of wins when the opposition is working so hard to push us back,” said Monica Simpson, executive director of advocacy group SisterSong Women of Color Reproductive Justice Collective, the lead plaintiff in the case.

After Tuesday’s decision, abortion access in Georgia reverted to the pre-ban level of up to 22 weeks of pregnancy.

Andrew Isenhour, a spokesman for Georgia Gov. Brian Kemp (R), said in a statement that the ruling “places the personal beliefs of a judge over the will of the legislature and people of Georgia.” The Georgia attorney general’s office immediately filed an appeal to the Georgia Supreme Court.

Georgia’s abortion law was among the strictest in the country when Kemp signed it into law in 2019. The law bans abortions after fetal cardiac activity is detected, at roughly six weeks. It had been blocked from taking effect until this summer, when the Supreme Court overturned Roe v. Wade’s decades-old protections.

In his decision, McBurney wrote that “per controlling Georgia precedent,” the relevant legal environment to consider is “not our current post-Roe Dobbsian era but rather the legal environment that existed when H.B. 481 was enacted.”

“At that time — the spring of 2019 — everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability,” he wrote.

Kemp, who won reelection last week, could face pressure from antiabortion advocates to pass new restrictions once the legislature reconvenes in January.

Alice Wang, an attorney with the Center for Reproductive Rights, which was among the groups representing the plaintiffs, said there is “huge concern” that Georgia lawmakers could try to pass another six-week or even total abortion ban.

Abortion rights advocates score major midterm victories across U.S.

“A vast majority of Americans support abortion access,” Wang said. “These strict abortion bans don’t reflect the will of the people.”

National antiabortion groups and politicians, however, slammed Tuesday’s ruling as judicial activism. Marjorie Dannenfelser, the president of SBA Pro-Life America, said in a statement that McBurney was “ignoring the will of the voters and imposing his own pro-abortion bias on Georgia instead.”

Meanwhile, abortion providers quickly began working with their staffs to determine when to restart offering abortions after six weeks.

Planned Parenthood Southeast, which has four clinics in Georgia, said it is working with its operations and legal team to determine when to resume services, with the hope of doing so “immediately.” The organization’s patient access center has been “flooded” with calls Tuesday since the ruling came out, said Amy Kennedy, the group’s vice president of external affairs.

The legal team of Carafem, which operates a network of clinics and telehealth services and has one location in Atlanta, quickly began discussing the ruling after the verdict came down.

“We’re listening carefully right now to our legal advisers who are helping us look through the verdict today, and we really do hope that we’ll be able to restart services quickly,” said Melissa Grant, Carafem’s chief operating officer. But she added that Carafem needed “a little bit of time to regroup” before its facilities can resume services.

In Georgia, 13 clinics have continued to provide abortions since Roe was overturned. One clinic has closed since the Supreme Court’s June ruling, according to an October report from the Guttmacher Institute, a research group that supports abortion rights.

In light of Tuesday’s ruling, Georgia could become a destination for patients across the South if the procedure remains legal in the state. Even with the roughly six-week ban in place, Carafem providers were seeing patients traveling from states such as Kentucky, Alabama and Mississippi.

Abortion access in America

Tracking abortion access in the U.S.: After the Supreme Court struck down Roe v. Wade, the legality of abortion is left to individual states. The Post is tracking states where abortion is legal, banned or under threat.

Abortion pills: The Justice Department appealed a Texas judge’s decision that would block approval of the abortion pill mifepristone. The Supreme Court decided to retain full access to mifepristone as the appeal proceeds. Here’s an explanation of what happens next in the abortion pill case.

Post-Roe America: With Roe overturned, women who had secret abortions before Roe v. Wade felt compelled to speak out. Other women who were seeking abortions while living in states with strict abortion bans also shared their experiences with The Post through calls, text messages and other documentation. Here are photos and stories from across America since the reversal of Roe v. Wade.