On Monday, a state court judge declared unconstitutional Georgia’s Living Infant’s Fairness and Equality (LIFE) Act, a 2019 law that bans abortions if a fetal heartbeat can be detected (typically around six weeks of pregnancy) absent a “medical emergency.”
In signing the bill into law, Gov. Brian Kemp (R) characterized it as “a declaration that all life has value, that all life matters, and that all life is worthy of protection.” Fulton County Superior Court Judge Robert C.J. McBurney agreed with Kemp that every life is worthy of protection. The difference is that he includes the lives of women and girls, too.
McBurney’s 26-page ruling thus demolished Justice Samuel Alito’s reasoning for the majority in Dobbs v. Jackson Women’s Health Organization, which reversed Roe v. Wade and virtually erased women’s interests from the abortion equation under the Constitution’s 14th Amendment. He also exposed the cynicism of the Dobbs majority’s assertion — parroted by former President Donald Trump on the campaign trail — that it was merely sending the question of abortion “back to the states.”
McBurney’s ruling applied the Georgia state constitution to strike down its law, rather than the federal Constitution, which is now controlled by Dobbs. But his analysis of the Georgia constitution fits the federal one just as well.
Under Roe, legislative restrictions on abortion were put through a classic constitutional balancing test, with women’s constitutional interests on one side of the scale and the state’s interests on the other. The Roe majority opinion described the interests of women — which in theory the state should also care about — this way:
“Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”
Alito ignored this list altogether, instead exclusively championing the state’s interest in protecting “‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
McBurney, a Republican appointee, sees things differently: “Whether one couches it as liberty or privacy (or equal protection), this dispute is fundamentally about the extent of a woman’s right to control what happens to and within her body.” And under Georgia law, “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.” Because of this constraint on the power of the state, people can engage in “gluttony and self-deprivation,” he reasoned. They “are free to tattoo or pierce any and every square inch of their skin,” and “ordinarily” they “can pursue — or refuse — medical care, elective or essential.”
McBurney acknowledged Georgia’s competing interest in fetal life, but rejected the state’s claim that anyone who engages in or facilitates termination of “a post-embryonic cardiac activity pregnancy” can be guilty of a felony under the Georgia constitution. Until the fetus is viable, meaning it can live outside the mother and enjoy the protections of the state, “the only person in this great wide world who can — by choice or legislative imposition — maintain that pregnancy until it is viable” is the pregnant mother herself. “Unlike a newborn baby or a catatonic elder, both of whom our society should and does support if family and friends have stepped back from their expected roles as caregivers, for a pre-viability fetus there is no one else who can assume that woman’s role.” McBurney reached this conclusion after an evidentiary trial.
As for the claim that it’s up to the states to make this calculation, not judges, McBurney wrote: “Women are not some piece of collectively owned community property the disposition of which is decided by majority vote.” And he somewhat valiantly noted, “It is generally men who promote and defend laws like the LIFE Act, the effect of which is to require only women — and, given the socio-economic and demographic evidence presented at trial, primarily poor women, which means in Georgia primarily black and brown women — to engage in compulsory labor, i.e., the carrying of a pregnancy to term at the Government’s behest.”
Since Georgia enacted its six-week gestation ban, at least two women have died after attempting to legally terminate their pregnancies. Amber Nicole Thurman, a 28-year-old mother of a six-year-old boy, had taken a drug regimen to terminate an early pregnancy, but the resulting miscarriage did not fully expel the contents of her uterus. She went to Piedmont Henry Hospital for a routine dilation and curettage procedure, or D&C, but the doctors waited 20 hours before invoking the law’s exception for a medical emergency, which if wrongly assessed could produce a felony conviction. In the interim, her organs began to fail. When doctors finally decided to operate, she died of a sepsis infection.
When Candi Miller, a 41-year-old mother of three who suffered from lupus, diabetes and hypertension, unintentionally became pregnant in the fall of 2022, she ordered abortion medication online. Again, the pills did not work to complete the miscarriage. After days of agony, her husband found her dead in bed, their three-year-old daughter at her side. The family told the coroner that Miller was reluctant to seek medical care “due to the current legislation on pregnancies and abortions.”
Both women’s deaths were preventable, and both women were Black.
Come November, voters in 10 states will have a chance to decide whether to protect abortion access, at least until viability, under their state constitutions. Nebraska will face competing options to either mostly protect or ban abortion. In all but Maryland and New York (including conservative states like Arizona and Florida), the abortion protection measures were citizen-initiated, rather than proposed by the state legislatures. This speaks volumes about sending abortion “back to the states.”
Voters should read McBurney’s ruling and vote like their lives — or those of the women and girls they care about — depend on it. Because they do.
Kimberly Wehle is author of the new book “Pardon Power: How the Pardon System Works — and Why.”