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Judge overturns Georgia’s six-week abortion ban

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

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.

Roe v. Wade and abortion access in America

Roe v. Wade overturned: The Supreme Court has struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.