Constitutional Law

Georgia's six-week abortion ban was unconstitutional when enacted and can't be enforced, judge rules

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A judge in Fulton County, Georgia, has struck down the state’s ban on most abortions after a fetal heartbeat is detected, which happens at about six weeks of pregnancy.

Judge Robert McBurney ruled Tuesday that the fetal heartbeat provision was unconstitutional under U.S. Supreme Court precedent when it was enacted in 2019 and cannot be enforced.

The Washington Post, Axios, the Associated Press and Reuters are among the publications with coverage.

The Supreme Court’s decision overturning the right to abortion in June did not revive the Georgia law, according to McBurney.

The heartbeat abortion ban “did not become the law of Georgia when it was enacted and it is not the law of Georgia now,” McBurney said.

“The effect of this decision,” McBurney wrote in a footnote, “is to return the important policy question of how Georgians weigh privacy rights, bodily autonomy and fetal rights to the legislature for its careful consideration in light of the many legal, political and societal developments” since the Georgia law was passed.

McBurney did not rule on the plaintiffs’ claim that the law violated the Georgia Constitution.

Although McBurney struck down the ban on abortions after a fetal heartbeat is detected, the judge kept intact the requirement that doctors check for a heartbeat before performing an abortion.

Georgia’s attorney general plans to appeal, according to news coverage.

The case is Sistersong Women of Color Reproductive Justice Collective v. State of Georgia.

The American Civil Liberties Union was among several organizations representing the plaintiffs, according to a Nov. 15 ACLU press release.

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