Women are not some piece of collective owned community property
You HAVE to read the ruling of the judge who threw out Georgia's abortion ban. It's so good I pulled out the zingers for you.
Women in Georgia can once again legally obtain abortions after six weeks of pregnancy, thanks to Fulton County Superior Court Judge Robert McBurney, who’s ruling struck down the state’s 6-week abortion ban. This is a must read. I edited out some of the footnote references so you could easily read through, but you can read the ruling in its entirety here.
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. 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.
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.
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?
Because the LIFE Act 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. State v. Jackson, 269 Ga. 308, 310 (1998). The Act fails the second18 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. Indeed, as the trial testimony made clear, the Act’s prohibitions against certain healthcare choices take effect before most women even know they are pregnant and so before they can begin to contemplate whether having a child is safe and sustainable for the mother and, if relevant, for her family. 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.
Before the LIFE Act, Georgia law required a woman to carry to term any fetus that was viable, that had become something that -- or more accurately someone who -- could survive independently of the woman. That struck the proper balance between the woman’s right of “liberty of privacy” and the fetus’s right to life outside the womb. Ending the pregnancy at that point would be ending a life that our community collectively can and would otherwise preserve; no one person should have the power to terminate that. Previability, 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.
Fortunately, the record before the Court is that the majority of pregnancies involve women who sought to get pregnant, who want to fulfill that role of life-giver with that pregnancy, and who need no legislative prod to do so. But the record is no less clear that for many women, their pregnancy was unintended, unexpected, and often unknown until well after the embryonic heartbeat began. Yet that’s too late under the LIFE Act’s strictures: these women are now forbidden from undoing that life-altering change of circumstances -- before they even knew the change had occurred. 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.