Georgia’s six-week abortion ban overturned as unconstitutional

A judge overturned Georgia’s ban on abortion starting around six weeks into a pregnancy, ruling on Tuesday that it violated the US constitution and US supreme court precedent when it was enacted.

The ruling by Judge Robert McBurney of Fulton county superior court applies statewide. The ban had been in effect since July.

It prohibited most abortions once a “detectable human heartbeat” is present. Cardiac activity can be detected by ultrasound in cells within an embryo that will eventually become the heart as early as six weeks into a pregnancy. That means most abortions in Georgia were in effect banned at a point before many women knew they were pregnant.

McBurney’s ruling came in a lawsuit that sought to strike down the ban on multiple grounds, including that it violates the Georgia constitution’s right to privacy and liberty by forcing pregnancy and childbirth on women in the state. The lawsuit filed by doctors and advocacy groups in July also argued that Georgia’s abortion ban was invalid because it violated the US constitution and US supreme court precedent when it was enacted.

McBurney agreed with that argument in his decision.

Georgia’s law was passed by state lawmakers and signed by the Republican governor, 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.

The 11th US circuit court of appeals allowed Georgia to begin enforcing its abortion law just over three weeks after the high court’s decision in June.

McBurney said when the law was enacted, “everywhere in America, including Georgia, it was unequivocally unconstitutional for governments – federal, state, or local – to ban abortions before viability.”

He said the state’s law “did not become the law of Georgia when it was enacted and it is not the law of Georgia now”.

The state has argued that the Roe decision itself was wrong and the supreme court ruling wiped it out of existence.

Photograph: Ben Gray/AP People gather in front of the Georgia state capitol in Atlanta on 24 June to protest against the supreme court's decision to overturn Roe v Wade.