Georgia Superior Court Judge Robert McBurney has written an extraordinarily clear and eloquent judgment that is a pleasure to read. In Sistersong Women of Colour Reproductive Justice Collective v.  State of Georgia released September 30, 2024, the judge held unconstitutional the key parts of Georgia’s new anti-abortion law. Most of what follows is in the judge’s own words. I have left out his footnotes and case citations, but I have used bold font to highlight key passages. 

It will be interesting to see the result of the State’s appeal.

Background of the Decision

On 4 April 2019, the Georgia Legislature passed the “Living Infants Fairness and Equality (LIFE) Act”, which took effect 1 January 2020. Section 4 of the LIFE Act amended the earlier law to criminalize abortions occurring after the embryo generates a “detectable human heartbeat”, a development which both sides in this litigation agreed typically occurs around six weeks after the mother’s last menstrual period.  The Act also introduced other changes, all consistent with its policy theme that unborn children are “natural persons,”.

“But its fundamental alteration to Georgia law was its extreme narrowing of the window of time within which women have the legal ability to end a pregnancy from roughly twenty weeks (i.e., viability) down to a mere six weeks, a point at which many — if not most – women are completely unaware or at best unsure if they are pregnant.“

The Issue as Described by the Court

“……this dispute is fundamentally about the extent of a woman’s right to control what happens to and within her body. The baseline rule is clear: a legally competent person has absolute authority over her body and should brook no governmental interference in what she does — and does not do — in terms of health, hygiene, and the like. ….

Gluttony and self-deprivation are both constitutionally protected lifestyles. People are free to tattoo or pierce any and every square inch of their skin. And, ordinarily, one can pursue — or refuse — medical care, elective or essential.

But here, in this case and this debate, there is one more important fact – the pregnancy — that changes the constitutional analysis. At some point, the pregnancy acquires its own rights that deserve protection that can conflict with the mother’s exercise of her rights. We struggle mightily — and not always peaceably – with determining when that point arrives. …

And that creates the issue to be decided here: how to balance the rights of a not-yet-viable fetus against the rights of the only person in this great wide world who can — by choice or by legislative imposition — maintain that pregnancy until it is viable.”

The Court’s Balancing of Maternal versus State’s Rights

After reviewing the evidence and arguments submitted by the parties, the Judge wrote:

“Before the LIFE Act, Georgia law required a woman to carry to term any fetus that was viable, that had become something that — or more accurately someone who — could survive independently of the woman. That struck the proper balance between the woman’s right of “liberty of privacy” and the fetus’s right to life outside the womb. 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. Previability, however, the best intentions and desires of society do not control, as only the pregnant woman can fulfill that role of life support for those many weeks and months. The question, then, is whether she should now be forced by the State via the LIFE Act to do so? She should not. Women are not some piece of collectively owned community property the disposition of which is decided by majority vote.”

Conclusion

“For these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability. It is not for a legislator, a judge, or a Commander from The Handmaid’s Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could — or should — force them to serve as a human tissue bank or to give up a kidney for the benefit of another. Considering the compelling record evidence about the physical, mental, and emotional impact of unwanted pregnancies on the women who are forced by law to carry them to term (as well as on their other living children), the Court finds that, until the pregnancy is viable, a woman’s right to make decisions about her body and her health remains private and protected, i.e., remains her business and her business alone. When someone other than the pregnant woman is able to sustain the fetus, then — and only then — should those other voices have a say in the discussion about the decisions the pregnant woman makes concerning her body and what is growing within it.”