Georgia judge overturns state’s six-week ‘heartbeat’ abortion law, calls it 'unconstitutional'

Fulton County Superior Court Judge Robert McBurney issued the order on Monday, saying abortions must be regulated the way they were before the “Heartbeat Law” went into effect, meaning abortions could be allowed until the 22-week mark.

“The authors of our Constitutions, state and federal, entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning,” McBurney wrote in his final order. “A review of our higher courts’ interpretations of ‘liberty’ demonstrates that liberty in Georgia includes in its meaning, in its protections, and in its bundle of rights the power of a woman to control her own body, to decide what happens to it and in it, and to reject state interference with her healthcare choices.

“That power is not, however, unlimited,” the judge added. “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.”

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McBurney continued, saying a law that prevents abortions after six weeks was inconsistent with those rights as well as the proper balance that a viability rule establishes between a woman’s rights and society’s interests in protecting and caring for unborn infants.

He then declared the “Life Act” as “unconstitutional.”

Georgia Gov. Brian Kemp, a Republican, signed the “Heartbeat” abortion bill, also known as the Living Infants Fairness and Equality Act,” into law in 2019. The law made abortions after the six-week mark illegal.

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There were exceptions written into the law, including rape and incest, as long as a police report was filed. Another exception to the law allowed for abortions after six weeks if the mother’s life was at risk or if a serious medical condition rendered a fetus inviable.

The law signed by Kemp was blocked by a federal judge in October 2019 — before it went into effect — and ruled it violated the right to abortion established by Roe. v. Wade in 1973.

The Supreme Court overturned Roe v. Wade in June 2022, which cleared the way for Georgia’s law on abortion to go into effect.

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McBurney, in November 2022, ruled the law was “unequivocally unconstitutional” because it was enacted in 2019 when Roe v. Wade allowed abortions after six weeks.

But in October 2023, the Georgia Supreme Court rejected the ruling in a 6-1 decision, saying McBurney was wrong.

“When the United States Supreme Court overrules its own precedent interpreting the United States Constitution, we are then obligated to apply the Court’s new interpretation of the Constitution’s meaning on matters of federal constitutional law,” Justice Verda Colvin wrote for the majority.

McBurney’s ruling on Monday stated that the state, county, municipal and other local authorities are “enjoined” from seeking to enforce the six-week abortion law.

The Associated Press contributed to this report.