Georgia judge invokes The Handmaid’s Tale while striking down state’s six-week abortion ban

A judge in Georgia has once again blocked the state from enforcing a ban on abortion at roughly six weeks of pregnancy, concluding that state law criminalizing care is unconstitutional.

The 26-page opinion, from Fulton County Superior Court Judge Robert McBurney, ordered that abortion access must be regulated as it was before Georgia lawmakers passed the state’s anti-abortion law in 2019.

That ban under the state’s “LIFE Act” was effectively blocked by Roe v Wade, which the Supreme Court struck down three years later in 2022.

Monday’s ruling will allow Georgia abortion patients to seek care past six weeks of pregnancy — for now — potentially turning the state into a crucial refuge for access in the South, where every state has outlawed most forms of abortion care at any point in a pregnancy. Providers told reporters after the ruling that they anticipate expanding care access immediately.

Judge McBurney’s stunning order notes that most women are “completely unaware” or “at best unsure” whether they are pregnant at six weeks, or roughly two weeks after a missed period. He compares the state’s anti-abortion law to the violent misogynist regime in Margaret Atwood’s best-selling novel, The Handmaid’s Tale.

“Women are not some piece of collectively owned community property the disposition of which is decided by majority vote,” he wrote. “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.”

Judge McBurney wrote that “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”.

The case is now likely headed to the Georga Supreme Court, which had previously upheld the state’s ban.

A footnote in the ruling oberves that 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,” the judge added.

The ruling comes just two weeks after an investigation by ProPublica chronicled the deaths of two Georgia women who were not able to access abortion care in the state after the Supreme Court overturned Roe.

These cases have revived scrutiny of Georgia’s abortion ban and similar anti-abortion laws across the US in the wake of Roe’s end, and the wave of litigation from abortion patients, providers and civil rights groups that has followed.

The judge’s ruling stems from a lawsuit filed by SisterSong Women of Color Reproductive Justice Collective and others against the state shortly after Governor Brian Kemp signed the measure into law in 2019.

Judge McBurney had previously ruled that the law was unconstitutional in 2022, but that decision was reversed by the Georgia Supreme Court.

Abortion is banned at all stages of pregnancy, with only limited exceptions, in more than a dozen Republican-controlled states.

Abortion also is outlawed past six weeks in Florida and South Carolina, while others have imposed other restrictions and barriers to care in a constantly evolving and legally confusing map for abortion access.

“We are encouraged that a Georgia court has ruled for bodily autonomy,” SisterSong executive director Monica Simpson said in a statement.

“At the same time, we can’t forget that every day the ban has been in place has been a day too long — and we have felt the dire consequences with the devastating and preventable deaths of Amber Nicole Thurman and Candi Miller,” she added. “For years, Black women have sounded the alarm that abortion bans are deadly. While true justice would mean Amber and Candi were still with us today, we will continue to demand accountability to ensure that their lives — and the lives of others who we have yet to learn of — were not lost in vain.”