Georgia Judge Makes the Point: State's Six-Week Abortion Ban Struck
The lede, via
Georgia Recorder↱:
Abortion is legal again in Georgia – for now – after fetal cardiac activity is detected, which is usually after about six weeks and before many women know they are pregnant.
The six-week ban had been in effect since July but was thrown out Tuesday along with a requirement that physicians report to the state Department of Public Health when an abortion qualified under the state's narrow exceptions, such as in the case of rape if a police report has been filed.
In his ruling, Fulton County Superior Court Judge Robert C. I. McBurney called the provisions "plainly unconstitutional" because they passed in 2019 and before the U.S. Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization ended the federal protection to abortion access.
"Under Dobbs, it may someday become the law of Georgia, but only after our Legislature determines in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate whether the rights of unborn children justify such a restriction on women's right to bodily autonomy and privacy," McBurney wrote in his ruling.
As is, the restrictions passed three years ago "exist on paper only," he wrote.
"They were and are void and must be re-enacted in our post-Roe world if they are to become the law of Georgia," McBurney wrote.
This is something of a technical ruling: It's one thing if
Dobbs makes it legal to pass certain laws, but that doesn't mean prior laws were somehow in effect. That is, the laws at hand don't work, but the legislature can easily fix that.
On page four of his decision, however, Judge McBurney made a certain point in a footnote:
The State argues that Dobbs reflects no change in constitutional law "because there was never a constitutional right to abortion," (Defendant's Response at 2; emphasis in original). Except there was. For 50 years. And we know it because the very same Supreme Court told us so. Repeatedly. Those prior pronouncements carried no lesser effect and were entitled to no less deference in Georgia or anywhere else in the Republic than that which we must all afford the Dobbs decision. Dobbs is now the law of the land; this Court and every other court in America are bound to apply it faithfully and completely. Yet Dobbs' authority flows not fromsome mystical higer wisdom but instead basic math. The Dobbs majority is not somehow "more correct" than the majority that birthed Roe or Casey. Despite its frothy language disparaging views espoused by previous Justices, the magic of Dobbs is not its special insight into historical "facts" or its monopoly on constitutional hermeneutics. It is simply numbers. More Justices today believe that the U.S. Constitution does not protect a woman's right to choose what to do with her body than did in that same institution 50 years ago. The new majority has provided our nation with a revised (and controlling) interpretation of what the unchanged words of the U.S. Constitution really mean. And until that interpretation changes again, it is the law.
Sometimes people treat politics like they're watching a sporting event they don't know much about, and maybe it's interesting to watch the players run around, but the game is a mystery. In the history of political equivocation, the scorching McBurney lays on the Supreme Court of the United States is illustrative of the difference. Sure, one side says something, and the other side says something else, but what the judge is doing here is observing the distinction between the two.
†
When logic fails, fallacy works well enough for some.
Ceteris paribus is not necessarily in effect. The short form is that when traditional power faltered, egotism led people to the comfort of fallacy, so when the basic two plus two of the law met unsparing sunlight, tradition blinked and flinched and faltered. Unable to justify themselves, they accepted the only explanation left, that the other side was just making it up as they went.
The conservative majority on the Supreme Court is similar. Women have rights? Only because they say so. Gay people have rights? Only because they say so. Thus, the way to correct these problems under law is to simply say so; thus the Supreme Court set aside precedent and custom so that conservatives could make believe and enshrine their fantasies into law.
Or, y'know, maybe. It really does seem like a strange explanation for prestigious behavior, but it fits the circumstance better than presuming all things are equal, and that one argument is as valid as the next simply for the fact of existing.
Judge McBurney, being stubbornly old school insofar as he chooses to abide precedent, custom, and history, parses the distinction well. It is not a matter of facts or insight or clairvoyance, but, rather, that a majority of nine people believe human rights are too good for women.
And if it only took all this for a judge to come right out and say it, he never should have needed to.
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Notes:
McBurney, Robert C. I. "Order on Motion for Partial Judgment on the Pleadings and Motion to Dismiss". Sistersong Women of Color Reproductive Justice Collective v. Georgia. Superior Court of Fulton County. 15 November 2022.
Nolin, Jill and Ross Williams. "Fulton judge overturns Georgia’s six-week abortion ban as unconstitutional". Georgia Recorder. 15 November 2022. GeorgiaRecorder.com. 17 November 2022. http://bit.ly/3EDIVq5