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I don’t now where this case goes from here, but this is cause for celebration!

SISTERSONG WOMEN OF COLOR ) REPRODUCTIVE JUSTICE ) COLLECTIVE, on behalf of itself and )
CIVIL ACTION
its members et al., Plaintiffs
v.
STATE OF GEORGIA, Defendant

I had to do a series of ugly copy & pastes, so I just broke this up randomly between sentences.  Here’s the original order.

Whether one couches it as liberty or privacy (or even equal protection), this dispute is fundamentally about the extent of a woman’s right to control what happens to and within her body. 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.10 Cruzan v. Director, MDH, 497 U.S. 261, 269 (1990) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body”). Unsurprisingly, the manner in which Georgia’s courts have interpreted and applied these provisions of the State Constitution (and the rights flowing from them) firmly supports such a position. G

luttony 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.
But here, in this case and this debate, there is one more important fact — the pregnancy — that changes the constitutional analysis.

At some point, the pregnancy acquires its own rights that deserve protection, protection that can conflict with the mother’s exercise of her rights. We struggle mightily — and not always peaceably — with determining when that point arrives. For some, that moment is conception: when sperm fertilizes egg and a zygote is formed — a single cell with a unique combination of DNA drawn from each parent — a new life begins, a life vested with all the protections our Constitution affords living human beings. See, e.g., LePage v. Ctr. for Reprod. Med., P.C., — So. 3d. —, SC-2022-0515, 2024 WL 656591 at *16 (Ala. Feb. 16, 2024) (“We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness.”) (Parker, C.J., concurring).

For many others, including Georgians until the LIFE Act was passed, that tipping point is viability, when the fetus — now fully formed — can survive outside the mother. See, e.g., Conn. Gen. Stat. Ann. § 19a-602(a) (“The decision to terminate a pregnancy prior to the viability of the fetus shall be solely that of the patient”); 775 Ill. Comp. Stat. Ann. 55/1-25; Me. Rev. Stat. tit. 22, § 1598.

Our Legislature — or at least the Legislature as it was composed back in 2019 — has, through the now-resurrected LIFE Act, offered yet another perspective: life begins with the establishment of a pre-fetal circulatory system.11 That point, according to the LIFE Act, is when embryo and mother become co-equal, enjoying the same rights under the Constitution.12

Thus in Georgia today a pregnancy that persists beyond the detection of this initial heartbeat — that is, a post-embryonic cardiac activity pregnancy (PECAP) — may not be terminated unless one of several narrow exceptions applies. Indeed, anyone performing or facilitating a non-exempt PECAP termination is, under the LIFE Act, guilty of a felony offense.13 O.C.G.A. § 16-12-140. And that creates the issue to be decided here: how to balance the rights of a not-yet-viable fetus against the rights of the only person in this great wide world who can — by choice or by legislative imposition — maintain that pregnancy until it is viable?14

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.21,22

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.23

Conclusion

The authors of our Constitutions, state and federal, entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

...demonstrates that 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.33 The State and all its agents, to include any County, Municipal, or other local authority, are once again ENJOINED from seeking to enforce in any manner the LIFE Act’s PECAP termination ban in Georgia. Because Section 4 is stricken and thus its amendments to O.C.G.A. § 16-12-141 are gone, Section 11 necessarily fails as well, as a woman does not require a legislatively bestowed exception to pursue a pre-viability PECAP termination. Finally, O.C.G.A. 16-12-141(f) is DECLARED unconstitutional. It, too, shall not be enforced by the State or any of its agents.

The law of Georgia reverts to what was (and remains) constitutional in this State at he time of the LIFE Act’s passage.

Georgia!Post + Comments (119)

With no chance, of early parole, you don’t get out until you get some soul.

If only Democrats stopped saying bad things about folks with obvious economic anxiety, we’d be able to convince these people to vote for us.

Ought to be a Law, With No Bail, Smash a Guitar and You Go to JailPost + Comments (235)