State Judge Rules Georgia Abortion Ban ‘Unconstitutional’

A Georgia Superior Court judge barred on Tuesday Georgia’s six-week abortion from being enforced, founding it to be plainly unconstitutional when it was approved by Republican Gov. Brian Kemp in 2019 – more than three years before the US Supreme Court overturned Roe v. Wade.

The Living Infants Fairness and Equality (LIFE) Act, or HB481, bans, with some exceptions, abortion in Georgia when early cardiac activity is detected, as early as six weeks into a pregnancy.

The bill had been ruled unconstitutional the same year it was approved, but that decision was reversed after the Supreme Court revoked the constitutional right to abortion.

Fulton County Superior Court Judge Robert McBurney stated in his ruling that the LIFE Act must be considered under the legal environment that existed when it was enacted and that it violated pregnant women’s rights to privacy under the constitution that in 2019 was unequivocally banning governments – federal, state, or local – to ban abortions before viability.

He found that, ultimately, neither the state government nor local government in Georgia has a legal basis to enforce a post-heartbeat ban on abortion.

Judge McBurney’s ruling makes the procedure legal in Georgia again until at least 20 weeks of pregnancy, effective immediately, and the plaintiff in this case, the American Civil Liberties Union of Georgia which represented doctors and advocacy groups, expects abortions to resume Wednesday at some clinics.

McBurney’s decision, however, allows one provision – that requires doctors to determine if a heartbeat is present before performing an abortion – of the LIFE Act to stand since it does not prevent the procedure from being performed, and the Georgia judge determined it was not unduly burdensome.

His ruling comes a week after midterm elections, in which the abortion issue played a key role – especially in Georgia. Although Gov. Kemp won re-election last week, defeating the Democratic challenger, Stacey Abrams, the tight senate race between a Democratic incumbent, Raphael Warnock, and his Republican challenger, Herschel Walker, heads to a runoff.

Although Walker said he supports the state’s abortion ban, two women have claimed that he urged them to have abortions and even paid for the procedure in one case

Walker denied those claims.

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