Georgia Judge Strikes Down State’s 6-Week Abortion Ban, Cites ‘Liberty Of Privacy’
ATLANTA — A Fulton County judge struck down Georgia’s six-week abortion ban Sept. 30, declaring it an unconstitutional violation of a woman’s rights to “liberty of privacy” and the control of her body.
“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,” Fulton County Superior Court Judge Robert C.I. McBurney wrote in his ruling.
“An arbitrary six-week ban on post-embryonic cardiac activity pregnancy terminations is inconsistent with these rights and the proper balance that a viability rule establishes between a woman’s rights of liberty and privacy and society’s interest in protecting and caring for unborn infants.”
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) disagreed with the ruling.
“The ruling from the Georgia court striking down the state’s pro-life law is deeply disappointing and contrary to the Georgia Supreme Court’s previous decision,” said Hannah Daniel, ERLC director of public policy. “The rationale that a life is only worthy of protection when society can assume care and responsibility for it is illogical and assigns an arbitrary designation void of any biblical or biological understanding of the value of life.”
McBurney’s ruling came after the Georgia Supreme Court upheld Georgia’s Living Infants Fairness and Equality Act (LIFE Act) in the 2022 case of Sistersong Women of Color Reproductive Justice Collective v. State of Georgia. But in its 2023 ruling, the State Supreme Court returned a portion of the case to the lower court to determine whether Georgia’s constitution protects a right to privacy and whether that right covers abortion.
“The more elusive and amorphous right to privacy has ‘a long and distinguished history’ in our State, but it is a history based on judicial interpretation and application of the constitutional right to liberty, rather than on some explicit constitutional language about privacy,” McBurney wrote, referencing the 1998 case of Powell v. State. “Regardless of its indirect constitutional provenance, in Georgia, ‘privacy is considered a fundamental constitutional right.’”
McBurney’s ruling overlooks the fundamental right to life, Daniel said.
“The judge’s conflation of liberty with the right to an abortion completely dismisses another fundamental principle: the right to life,” Daniel told Baptist Press. “The Dobbs decision allowed states like Georgia to enact these life-saving laws consistent with the view that preborn life is valuable and worthy of protection. Though this decision is a setback, we are committed to coming alongside our state partners to advocate for a culture of life and restore these vital protections for precious preborn lives.”
Republican Attorney General Chris Carr has already indicated he will appeal McBurney’s ruling directly to the Georgia Supreme Court.
“We believe Georgia’s LIFE Act is fully constitutional, and we will immediately appeal the lower court’s decision,” Carr spokeswoman Kara Murray told the New York Times.
Abortions are now allowed as late as 22 weeks in Georgia, the cutoff that was in place before the LIFE Act, passed in 2019, became effective after Roe v. Wade was overturned in 2022.
Mike Griffin, public affairs representative for the Georgia Baptist Mission Board, also believes the LIFE Act is constitutional.
“There’s no doubt that the state Supreme Court and the 11th Circuit Court of Appeals have been clear on the Life Act,” Griffin told the Christian Index. “They both agreed that it was constitutional when it was signed into law because Roe was vacated, meaning it is to be treated as if it never existed to start with. Roe was not constitutional.”
In his ruling, McBurney reasoned that Georgia law before the LIFE Act was in line with state constitutional law, in that it required a woman to carry a fetus to term if it were viable and could survive independently of the mother.
“That struck the proper balance between the woman’s right of ‘liberty of privacy’ and the fetus’ right to life outside the womb,” he wrote. “Ending the pregnancy at that point would be ending a life that our community collectively can and would otherwise preserve; no one person should have the power to terminate that.”
The LIFE Act’s requirement that a woman’s medical records be made available to law enforcement is an invasion of privacy, McBurney said, and the act errs in omitting mental health as a health-based exception to the abortion ban.
“A law that saves a mother from a potentially fatal pregnancy when the risk is purely physical but which fates her to death or serious injury or disability if the risk is ‘mental or emotional,’” McBurney wrote, “is patently unconstitutional and violative of the equal protection rights of pregnant women suffering from acute mental health issues.”
This article has been republished with permission from Baptist Press.
Diana Chandler is Baptist Press’ senior writer.