What a Georgia Judge’s Decision to Strike Down Six-Week Abortion Ban Means

A Georgia judge struck down the state’s six-week abortion ban on Monday, in what advocates hope is a sign of growing energy for protecting reproductive rights in the judiciary across the country.

The ruling “demonstrates the momentum that is building… We've seen some [state courts] recognize that state constitutions independently protect abortion as a fundamental right,” says Alice Wang, staff attorney at the Center for Reproductive Rights and one of the litigators who worked on the Georgia lawsuit. “Regardless of what may happen on appeal, that bell cannot be unrung.”

Fulton County Superior Court Judge Robert McBurney wrote in his decision that the six-week abortion ban, which was passed in 2019 but went into effect after the U.S. Supreme Court overturned Roe v. Wade in 2022, violated Georgia’s constitution. The decision allows the state to resume abortions up until about 22 weeks of pregnancy.

In the footnotes of his decision, McBurney rejects the argument that the word “liberty” in Georgia’s constitution has to be interpreted in accordance with what it meant in 1861, when it was included in the document. The judge writes that to do so would lead to a “white male perspective on an issue of greatest salience to women, including women of color” since white women didn’t have the right to vote and “liberty did not exist at all for Black women in Georgia” in 1861.

“The idea that constitutional interpretation should be rooted in the understanding of all white legislators back in 1861 is completely absurd and would yield unjust results,” Wang says.

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Georgia isn’t the first state where the courts have recently struck down abortion restrictions imposed by the legislature. In September, a North Dakota judge struck down the state’s abortion ban. In July, the Kansas Supreme Court once again ruled that the state constitution protects the right to abortion, overturning two laws restricting abortion.

McBurney may not have the final word in Georgia. The office of state Attorney General Chris Carr has already filed its notice of appeal and a request for an emergency stay, and the issue is likely to head to the state Supreme Court. Kara Murray, a spokesperson for Carr’s office, told The Associated Press after McBurney’s decision that the attorney general’s office believes the six-week ban “is fully constitutional.”

A quickly shifting landscape of abortion rights is something that Georgia providers have had to deal with before. In November 2022, the six-week ban was lifted for only about a week before the state asked for an emergency stay to implement the law again. And the extended legal fight will ensure that abortion remains a central issue in Georgia—one of the critical swing states in the presidential election—this fall.

For now, providers are allowed to perform abortions up until 22 weeks of pregnancy, which could affect people beyond Georgia. All of the states surrounding Georgia—including Florida, Alabama, and Tennessee—have either banned abortion in nearly all circumstances or have prohibited it early on in pregnancy. “This ruling is sort of a sigh of relief, where at least in Georgia, people can access abortion beyond the earliest weeks in pregnancy,” Wang says. “But given that the South is just an abortion desert at large right now, this decision is not enough.”

Wang called the ruling a “bittersweet victory” because the news follows ProPublica’s reporting that two women in the state, Amber Nicole Thurman and Candi Miller, died after they didn’t receive appropriate medical care while experiencing rare complications from abortion pills. “It is just heartbreaking,” Wang says, “that we have seen those harms come to pass.”