On the 30th of September 2024, Judge Robert C.I. McBurney, a Superior Court Judge of Fulton County, Georgia issued a decision regarding the Georgia abortion law in the case of Sistersong Women of Color Reproductive Justice Collective et al v. the State of Georgia.
It is a joy to read necessitating a lot of whoops and hollers. The following are his exact words cut right out of the opinion. My comments are in parentheses.
Quotes from the opinion:
The baseline rule is clear: a legally competent person has absolute authority over her body and should brook no governmental interference in what she does — and does not do — in terms of health, hygiene, and the like.
Gluttony and self-deprivation are both constitutionally protected lifestyles. People are free to tattoo or pierce any and every square inch of their skin. And, ordinarily, one can pursue — or refuse — medical care, elective or essential.
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 Georgia law) 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.
Because the LIFE Act (Georgia’s law that reduces abortion to only the first six weeks) infringes upon a woman’s fundamental rights to make her own healthcare choices and to decide what happens to her body, with her body, and in her body, the Act must serve a compelling state interest and be narrowly tailored to achieve that end. The Act fails the second half of that two-part test: there is nothing narrow about a law so blunt that it forces a woman to allow a fetus grow inside her for months after she has made the difficult and deeply personal decision not to bring the pregnancy to term.
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. (But of course the State does not sustain that life after it is born as the forced pregnancy crowd have repeatedly denied medical coverage, educational benefits, housing, SNAP etc. after birth.)
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. 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 (his words)), 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.
(He then dissects and destroys the argument on why physical harm to the woman can be a reason for an abortion but not mental harm and finds both definitions vague and a violation of due process and discrimination, and why rape and incest should not have to be reported to the police to be a reason to get an abortion. It’s clear he’s been in the real world. He also attacks the violation of privacy of medical records as all the woman’s medical records can be examined.)
… [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. That power is not, however, unlimited. 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 PECAP 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. Accordingly, Section 4 of the LIFE Act is hereby DECLARED unconstitutional.
* * *
That was just the body of the decision. His footnotes are scathing and show what he really thinks. In footnote 2 he demolishes the originalist argument since it is courts who must interpret constitutions, and Georgia has changed its constitution ten times. He chastises the Supreme Court (sic) for ignoring stare decisis and imposing their interpretation over that of decades previously on a document they claim is unchanging.
Finally in footnote 12 he speaks the truth about that nonsense “heartbeat” bill because there is no fetal heartbeat until at least 17-20 weeks. There is no heart until then so the electrical stimuli that is heard is simply the energy any living cell gives off.
He points out in footnote 17 that “To be clear, the record established at trial is that the pregnancy remains a tiny ungendered embryo until the ninth week, nearly a month after the LIFE Act’s prohibition has taken hold.”
He decimates their argument in footnote 19 about why it’s six weeks as opposed to 5 or 4 when women can terminate. A zygote is not viable at 6 weeks any more than it is at 4 or 5, so why 6 weeks? It’s an arbitrary political time limit not anything related to reality as is viability.
His comment in footnote 21 is something we have been trying to get a judge to say for a long time:
There is an uncomfortable and usually unspoken subtext of involuntary servitude swirling about this debate, symbolically illustrated by the composition of the legal teams in this case. It is generally men who promote and defend laws like the LIFE Act, the effect of which is to require only women — and, given the socio-economic and demographic evidence presented at trial, primarily poor women, which means in Georgia primarily black and brown women — to engage in compulsory labor, i.e., the carrying of a pregnancy to term at the Government’s behest. See Public Opinion on Abortion, Pew Research Center, https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion/#views-on-abortion-1995-2024 (last visited 29 September 2024). (The trial record also showed that wealthier women – which statistically means white women — are much more able to travel from Georgia to jurisdictions in which pre-viability pregnancies can be ended without fear of criminal prosecution.) While the Court does not find that the LIFE Act violates the state and federal constitutional prohibitions against involuntary servitude (see, e.g., Ga. Const. at Article I, Section I, Paragraph XXII), it is important to acknowledge the degree to which such laws compel a subset of our society to, against their will, labor for what the Legislature has decided is the betterment of society. This is eerily reminiscent of earlier times about which insufficient discussion is had when reviewing the “history” of laws surrounding reproductive rights in the United States. See, e.g., Michele Goodwin, Involuntary Reproductive Servitude: Forced Pregnancy, Abortion, and the Thirteenth Amendment, 2022 The University of Chicago Legal Forum 191 (2022)
His footnote 22 brought up an argument I hadn’t heard before but definitely approve of. He argues that the law forbidding abortion after six weeks is “a sweeping bill of attainder, prohibited by Article I, Section 1, Paragraph X of the Georgia Constitution. “A bill of attainder is a ‘legislative act, no matter what its form, that applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.” … Punishment in this context includes “[t]he deprivation of any rights, civil or political.” …Pregnant women who seek PECAP terminations are easily ascertainable members of the group of all pregnant women. The LIFE Act deprives them of civil rights (liberty, privacy, bodily autonomy, etc.) by way of legislative fiat rather than judicial trial. Indeed, if these women find themselves in a “judicial trial” court in connection with the LIFE Act, it is because they are criminal defendants facing felony prosecution.” The judge says it is her business and her business alone.
I propose we appoint him to the Supreme Court! Of course the State will appeal, and I wonder how long his fabulous decision will stand.
The real-world consequences of the laws are obvious in the new report issued by Pregnancy Justice. I reported on their findings earlier, but they have documented 210 cases of women being charged for pregnancy-related conduct in 12 states from June 24, 2022 to June 23, 2023. The majority of the cases were in the southern states (AL, MS, OH, OK, SC, TX).
This is an acceleration of previous reports with the primary driver being “fetal personhood.” Women are being charged under child endangerment laws even when the child is born healthy. The pregnancy police (like the morals police in Iran and Afghanistan) claim this will push women toward getting pre-natal care, but it does just the opposite. Women are afraid of being charged so avoid going to a doctor. They State provides no care for addicted women and then charges them for chemical endangerment of a fetus. In one case a woman was charged even though she had a medical prescription for marijuana. The prosecutor argued that the fetus was not able to hold a marijuana license! Fortunately, she was acquitted. In two cases the women had an abortion and were charged.
These moves are not benign. They are not out of concern for a fetus. They are born from a desire to control women.
VOTE YES ON 139 AND GET ALL YOUR FRIENDS AND NEIGHBORS TO DO SO TOO.
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My favorite part of his decision: “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.” This judge truly gets it. Thanks, Dianne.
Thank you, Dianne, for displaying his words. They are brilliant, well-reasoned and clear. Next I hope you will tackle the World Medical Health Coalition conference held on 9/27/24 at the National Press Center titled “The More Dangerous State of the World and the Need for Fit Leadership; The Much More Dangerous Case of Donald Trump” which very clearly defined exactly how mentally deranged Trump is and the danger he posses. Pay particular attention to the presentation by Dr. Drew Westen. Of course, despite the setting it has not been covered by the national press.