Georgia judge declares state’s abortion ban unconstitutional, allowing procedure to resume beyond 6 weeks into pregnancy

A Georgia judge has struck down the state’s six-week abortion ban, declaring it unconstitutional.

In a ruling issued on Monday, Judge Robert McBurney said Georgia’s Living Infants Fairness and Equality Act, or LIFE Act, infringes on a woman’s state constitutional rights.

The legal challenge was brought by SisterSong Women of Color Reproductive Collective against the state of Georgia.

“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. 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,” McBurney wrote.

When originally signed into law, the LIFE Act criminalized most abortions after an embryo generates detectable cardiac activity, typically around six weeks into a pregnancy.

When the US Supreme Court overturned Roe v. Wade in 2022 and ended a national right to abortion, it opened the door for state bans. Fourteen states now bar abortion at all stages of pregnancy, with some exceptions. Georgia was one of four where the bans kick in after about six weeks of pregnancy – which is often before women realize they’re pregnant.

The impact of bans has been felt deeply in the South because many people have to travel hundreds of miles to states where abortion procedures can be obtained legally.

The new Georgia ruling, if it stands, could open up new avenues to access abortion not only for residents of the state, but for people in nearby states who currently face long trips to places like North Carolina or Illinois.

Georgia could still appeal McBurney’s ruling. Kara Murray, communications director for Georgia Attorney General Chris Carr, said in a statement Monday, “We believe Georgia’s LIFE Act is fully constitutional, and we will immediately appeal the lower court’s decision.”

Georgia’s law was passed by state lawmakers and signed by Republican Gov. Brian Kemp in 2019 but had been blocked from taking effect until the Supreme Court overturned Roe v. Wade, which had protected the right to an abortion for nearly 50 years.

Kemp has in the past tried to soften the law’s political impact by trying to focus on the health of mothers. On Monday, he attacked the ruling.

“Once again, the will of Georgians and their representatives has been overruled by the personal beliefs of one judge,” Kemp said in a statement. “Protecting the lives of the most vulnerable among us is one of our most sacred responsibilities, and Georgia will continue to be a place where we fight for the lives of the unborn.”

Before the LIFE Act kicked in, there were more than 4,400 abortions each month in Georgia. That has dropped to about 2,400 a month on average since the ban took effect in 2022, according to data compiled for the Society of Family Planning.

CNN previously reported the Georgia State Supreme Court upheld the law in 2023, reversing a lower court’s decision, saying in part, “the trial court erred in relying on overruled decisions of the United States Supreme Court to conclude that portions of the LIFE Act violated the United States Constitution when enacted in 2019. The same United States Constitution governs today as when the LIFE Act was enacted, and Georgia courts are required to look to the United States Supreme Court’s now-controlling interpretation of the United States Constitution when determining whether a statutory law violates that Constitution.”

In Monday’s order, McBurney wrote, “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.”

In a statement released by the American Civil Liberties Union, SisterSong Executive Director Monica Simpson said, “Today’s win was hard-fought and is a significant step in the right direction towards achieving Reproductive Justice in Georgia. We are encouraged that a Georgia court has ruled for bodily autonomy.”

In part because Georgia has no way for citizens to place initiatives on the ballot, there’s no referendum on abortion rights scheduled for the state’s November election this year. But that hasn’t stopped Democrats from trying to keep abortion on center stage as an issue in Georgia, as they try to appeal to women voters and suburbanites.

On September 20, Vice President Kamala Harris visited Atlanta to cast Republican presidential nominee Donald Trump as a threat to women’s freedom and lives, warning Trump would limit abortion access even more if reelected. It’s also a key issue in state legislative races as Democrats try to cut into Republican majorities, particularly in the state House.

Harris came to Atlanta after ProPublica reported that two women in the state died after they did not get proper medical treatment for complications from taking abortion pills to end their pregnancies.

Democrats argue such deaths were a predictable outcome of laws that took effect after the Supreme Court overturned Roe v. Wade.

Harris has been outspoken on abortion rights ever since the Supreme Court’s decision more than two years ago, but the September 20 speech was her first focused squarely on the issue since replacing President Joe Biden at the top of the Democratic ticket.

This story has been updated with additional reporting.

The Associated Press contributed to this report.