In His Ruling that Georgia’s Six-Week Abortion Ban Violates Women’s ‘Liberty of Privacy,’ a Judge Makes Plain Why Elections Matter*
During the vice presidential debate, J.D. Vance recognized the gap in women’s trust of the Republican Party on reproductive healthcare. His running mate — who self-identifies as “protector” of women — thinks the government should punish women who choose abortion. Incredulously, Vance appealed to women to trust the Republican ticket on the issue, offering as the basis for such trust a slick word salad and the official party position that women cannot be trusted to make their own reproductive healthcare decisions.
The day before the vice presidential debate, a Fulton County judge released his Final Order holding key provisions of Georgia’s anti-choice law unconstitutional, while issuing a stinging rebuke of the Georgia high court’s facile duplicity. He was having none of the Georgia Supreme Court’s nonsense.
Sadly, the ruling was too late to save the lives of 28-year-old Amber Nicole Thurman and 41-year-old Candi Miller and, likely, an unknown number of other women for whom Georgia’s “pro-life” law prevented healthcare professionals from providing life-saving care. A Georgia agency investigates and reports the cause of such deaths which, of course, takes time. Thurman and Miller died in 2022. “Both deaths were officially deemed preventable by the state’s Maternal Mortality Review Committee.” Abortion Bans Have Delayed Emergency Medical Care, Resulting in Preventable Deaths.
In 2019, the Georgia Legislature passed the “Living Infants Fairness and Equality (LIFE) Act,” which took effect January 1, 2020, after Governor Kemp signed it into law. At the time, Roe v. Wade was still the law of the land, so a federal judge found it “fundamentally inconsistent with then-controlling federal constitutional law” and enjoined the state from enforcing it. After Dobbs overturned Roe and removed women’s right to make their own reproductive healthcare decisions, the LIFE Act went into effect. Plaintiffs — a coalition of Georgia-based OBGYNs, reproductive health centers, and membership groups “committed to reproductive freedom and justice” — challenged three of the LIFE Act’s sections as “infringing on their rights.”
One challenged provision “criminalize[d] abortions occurring after the embryo generates a ‘detectable human heartbeat,’ a development which . . . typically occurs around six weeks after the mother’s last menstrual period.”
The other two challenged provisions concerned “a physician’s obligations when performing abortions, to . . . make ‘a determination of the presence of a detectable human heartbeat of an unborn child’ before performing any abortion,” and the obligation of a physician who “performs an abortion after detecting a fetal heartbeat [to] report to the Department of Health the [narrow statutory] exception to the ban . . . that applied to justify the otherwise illegal procedure.” Final Order at 4–5.
This law purposely created a profound chilling effect on healthcare professionals. The livelihood and liberty of a doctor who performed life-saving medical care to a pregnant or miscarrying women were at risk if the state decided the doctor’s reported explanation was insufficient to fall within one of the LIFE Act’s narrow exceptions and rendered the medical care “otherwise illegal.”
This judge had already gone the rounds with Georgia’s high court on these issues. In November 2022, he entered an order holding provisions of the LIFE Act void ab initio — from when the law was enacted — “because they were unconstitutional when passed” under Georgia’s Constitution. The State of Georgia appealed, the Georgia Supreme Court “reversed [Judge McBurney’s] ruling, abandoned decades of its own precedent, and remanded the case for a ruling on the merits of Plaintiffs’ constitutional claims.” Final Order at 1–2.
So, that’s what Judge McBurney did. He held a trial, heard the evidence, and issued his ruling. Applying the Georgia Constitution’s explicit rights to “liberty” and the “right to privacy” which the Georgia Supreme Court had previously found encompassed within the “right to liberty,” he ruled on the merits of plaintiffs’ constitutional claims.
He began by rebuking the Georgia Supreme Court for its superficial, political, and outcome-driven reasoning that abandoned the high court’s own precedent in overturning his November 2022 ruling:
“The fundament upon which the majority rested its opinion — the falsely modest precept that ‘the Court is not the source of the Constitution’s meaning’ — guaranteed the outcome but misstates judicial (and political) reality. Of course the Constitution means what it means; such circularity tells us nothing. Ultimately, the Constitution means only what the courts tell us, and the Supreme Courts of the States and the Nation have the controlling voices in that discussion. Unsurprisingly (one would think), this results in different meanings being prescribed to the same words, phrases, and provisions as different minds and sensibilities take their turn discerning that meaning. In other words, the meaning of the Constitution is no more fixed than is the composition of the majority in the highest court of the land — especially when formerly bedrock principles such as stare decisis — appear to be on the wane. Given that less majestic but undeniable reality, the more logical approach to assessing whether a legislative enactment is void at the time of its passage is to rely on the then-controlling Constitutional interpretations. . . .”
Final Order at 2, fn. 2 (emphasis in original). (While President Biden was the Democratic nominee for president, I wrote The Supermajority on the Supreme Court is the Overarching Reason to Vote for President Biden in 2024. That argument applies, of course, regardless of who the Democratic nominee is.)
Citing the Georgia Supreme Court’s interpretation of the Georgia Constitution, Judge McBurney found the “right to privacy” is much broader than its federal counterpart: “the ‘right to be let alone’ guaranteed by the Georgia Constitution is far more extensive than the right to privacy protected by the U.S. Constitution.” That right is not absolute, however. “Georgians enjoy the right ‘to be let alone’ only so long as they are not interfering with the rights of other individuals or of the public.” Final Order at 9 (emphasis added).
So there’s the rub — and the state’s hook.
The state contended that Georgia’s “right to privacy” has never included the right to an “abortion.” Judge McBurney rejoined: “While this is true on a tritely literalistic level — the word ‘abortion’ is indeed nowhere to be found in the Georgia Constitution — that position misstates the question: does a Georgian’s right to liberty of privacy encompass the right to make personal healthcare decisions? Plainly it does.”
The state also argued that “because any termination of pregnancy necessarily interferes with the rights of ‘another,’ i.e., the fetus, the woman’s privacy must yield.” “But such interference,” Judge McBurney said, “does not mean the discussion is closed. It means instead that the respective rights must be balanced against each other.” Final Order at 10–11.
Early in law school I learned that if I could frame the issue, I’d win the argument. Here, the state attempted to frame the issue so it would render a simple and clear answer in its favor: a fetus’s right to life must always trump a woman’s right to “make her own decisions as to her health and well-being, as what could be more fundamental than the right to life?” Setting aside the fact that in many situations, pregnancy does threaten a woman’s right to life, Judge McBurney found unpersuasive this juxtaposition of the “right to life” versus the “right to liberty.” Final Order at 11.
He explained:
“[T]he LIFE Act criminalizes a woman’s deeply personal and private decision to end a pregnancy at a time when her fetus cannot enjoy any legislatively bestowed right to life independent of the woman carrying it. Put differently, the uncontroverted evidence from the trial of this case is that a pre-viability fetus survives only through the woman choosing — or being forced by law — to carry it at least to the 22nd or 23rd week of her pregnancy. Unlike a newborn baby or a catatonic elder, both of whom our society should and does support if family and friends have stepped back from their expected roles as caregivers, for a pre-viability fetus there is no one else who can assume that woman’s role and keep the pregnancy alive and healthy during those five long months. . . .
“While the State’s interest in protecting ‘unborn’ life is compelling, until that life can be sustained by the State — and not solely by the woman compelled by the Act to do the State’s work — the balance of rights favors the woman.
“Before the LIFE Act, Georgia law required a woman to carry to term any fetus that was viable, that had become something that — or more accurately someone who — could survive independently of the woman. That struck the proper balance between the woman’s right of ‘liberty of privacy’ and the fetus’s right to life outside the womb. Ending the pregnancy at that point would be ending a life that our community collectively can and would otherwise preserve; no one person should have the power to terminate that. Pre-viability, however, the best intentions and desires of society do not control, as only the pregnant woman can fulfill that role of life support for those many weeks and months. The question, then, is whether she should now be forced by the State via the LIFE Act to do so? She should not. Women are not some piece of collectively owned community property the disposition of which is decided by majority vote. Forcing a woman to carry an unwanted, not-yet-viable fetus to term violates her constitutional rights to liberty and privacy, even taking into consideration whatever bundle of rights the not-yet-viable fetus may have.
“Fortunately, the record before the Court is that the majority of pregnancies involve women who sought to get pregnant, who want to fulfill that role of life-giver with that pregnancy, and who need no legislative prod to do so. But the record is no less clear that for many women, their pregnancy was unintended, unexpected, and often unknown until well after the embryonic heartbeat began. . . .
“For these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability. It is not for a legislator, a judge, or a Commander from The Handmaid’s Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could — or should — force them to serve as a human tissue bank or to give up a kidney for the benefit of another. Considering the compelling record evidence about the physical, mental, and emotional impact of unwanted pregnancies on the women who are forced by law to carry them to term (as well as on their other living children), the Court finds that, until the pregnancy is viable, a woman’s right to make decisions about her body and her health remains private and protected, i.e., remains her business and her business alone. When someone other than the pregnant woman is able to sustain the fetus, then — and only then — should those other voices have a say in the discussion about the decisions the pregnant woman makes concerning her body and what is growing within it.”
Final Order at 11–16 (emphasis added).
I expect Georgia’s conservative majority on the court will reverse Judge McBurney’s decision and uphold the three sections of the LIFE Act. Indeed, after I published this article, and one-week to the day after Judge McBurney issued his decision, the Georgia Supreme Court Reinstated the Six-Week Abortion Ban pending the appeal of that decision.
R.VanWagoner https://medium.com/@richardvanwagoner publishes. https://richardvanwagoner.medium.com/subscribe
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner. Rob’s second novel is a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway. This novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards, and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Van Wagoner, a professional photographer, photographed more than 500 pieces of my father’s work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner are hers.