Judge weighing privacy rights with 'personhood' in lawsuit challenging Georgia's abortion law

November 7th, 2022

Fulton County Superior Court Judge Robert McBurney said he plans to issue a ruling in the state lawsuit over Georgia’s abortion law H.B. 481 after the November election.

Photo via Pixabay

A lawsuit challenging Georgia’s abortion restrictions is moving through the state court system after a two-day trial in Atlanta last month. The plaintiffs’ main argument centers on the state’s individual privacy protections, which are stronger than the federal ones that underlined Roe v. Wade abortion access guarantees.

The word privacy is not actually in the state constitution, but a landmark 1905 Georgia Supreme Court case called Pavesich v. New England Life Insurance Company recognized a sweeping right of individuals to keep their lives shielded from unjustified state intervention.

“And so the Georgia Supreme Court came up with this rule that basically said that we all have this inherent right to shield ourselves from the public eye and from the public gaze,” said Georgia State University Assistant Professor of Law Anthony Kreiss.

He says that made Georgia the first state in the country to establish a right to privacy.

“This provision says that you are entitled to due process of law. And through time, the Georgia courts have interpreted that provision that guarantees due process to mean that there are substantive rights which the state can’t impede upon without a good reason. And the Georgia Supreme Court has continuously built upon that precedent and expanded the ambit of the right to privacy well into the 1980s and 1990s, even.”

During the October abortion trial, the privacy claim was key to the plaintiff’s case against the state’s six-week abortion ban.

ACLU Staff Attorney Julia Kaye is one of the lawyers representing the plaintiffs, which include SisterSong Women of Color Reproductive Justice Collective, Georgia abortion-rights advocates and healthcare providers.

“It is inconceivable that an intrusion of this magnitude, that forced pregnancy and childbirth is not implicating the right is not within the sphere of privacy,” she argued in court, “implicating the right to be let alone.”

But since the abortion law known as H.B. 481 also grants embryos and fetuses so-called “personhood” rights under state law, attorneys for the state argued that the privacy protections don’t apply in this case.

“These are unborn children that the state wants to protect. And there is no way of protecting them except to keep people from aborting them,” said Georgia Solicitor General Stephen Petranny.

He said embryos and fetuses are now classified as people.

“This is affecting a third party, and we want to protect that third party,” Petranny said. “And to us, that’s really just the end of the case.”

It’s now up to Fulton County Superior Court Judge Robert McBurney to weigh the privacy question with the personhood status.

“When does a fetus take on a kind of state of personhood that is legally cognizable,” said Kreiss. “Where a right to privacy will yield to the state’s interest in preventing a woman from terminating a pregnancy?”

McBurney is expected to issue a decision sometime after the election.