A left-wing Fulton County, Georgia, judge has overturned the Peach State’s heartbeat bill that bans abortions after around six weeks.
Fulton County is perhaps the most far-left county in Georgia and Judge Robert C. I. McBurney essentially took what the left considers to be the strongest constitutional arguments to invent a right to abortion and applied them to Georgia’s state constitution.
The arguments stem from Roe v. Wade and Planned Parenthood v. Casey — both of which were overturned by Dobbs v. Jackson Women’s Health Organization in June — which, due to their overturns, are now being used to read a right to the procedure into state constitutions in lieu of the federal guarantee.
“At that time – the spring of 2019 – everywhere in America, including Georgia, it was unequivocally unconstitutional for governments – federal, state, or local – to ban abortions before viability,” McBurney wrote of Georgia’s 2019 LIFE Act.
Georgia argued that the new Dobbs ruling did not reflect a change in constitutional law “because there was never a federal constitutional right to abortion.”
But in a footnote, McBurney snidely replied, “Except there was. For 50 years. And we know it because the very same Supreme Court told us so. Repeatedly.”
“Faced with this seismic change in constitutional jurisprudence, as fifty years of abortion law (and good faith reliance on that law) were summarily jettisoned,” McBurney continued in the opinion, “Plaintiffs turned to Georgia courts for relief, as the Dobbs decision shifted the constitutional questions of reproductive freedom, personal autonomy, and the balancing of the rights of the mother and the unborn child to the states.”
Near the end of the opinion, McBurney makes a blatant appeal in favor of substantive due process — the invention of constitutional rights by the judiciary — saying, “this ruling is merely a reinforcement of what ought to be for everyone the uncontroversial notion that, if the judicial branch has declared a constitutional right, legislatures exceed their authority, improperly expand their role, and fundamentally alter the balance struck by the separation of powers when they enact laws they know to be plainly and facially unconstitutional.”
Georgia Attorney General Chris Carr’s (R) office intends to appeal the decision, which would bypass an intermediate court and go directly to the state’s supreme court.
The ruling, if upheld by the state supreme court, would not restrict Georgia’s legislature from passing a similar or more restrictive law in light of Dobbs, but was overturned because Roe was the framework under which the law was passed in 2019.
“Shame on Judge McBurney for ignoring the will of the voters and imposing his own pro-abortion bias on Georgia instead,” SBA Pro-Life America President Marjorie Dannenfelser said in a press release.
The case is SisterSong Women of Color Reproductive Justice Collective v. Georgia, No. 2022CV367796, in the Superior Court of Fulton County, Georgia.
Breccan F. Thies is a reporter for Breitbart News. You can follow him on Twitter @BreccanFThies.