There he goes again.
In a kooky ruling back in November 2022, Georgia superior court judge Robert McBurney invoked and misapplied the “void ab initio doctrine” to bar state officials from enforcing the state’s ban on post-heartbeat abortions enacted in 2019. In an excellent opinion a year ago, the Georgia supreme court reversed him by a vote of 6 to 1.
In a follow-on ruling today (in Sistersong Women of Color Reproductive Justice Collective v. Georgia), McBurney continues his wild rampage. In an opinion replete with screeching rhetoric (yes, even The Handmaid’s Tale makes an appearance), McBurney holds that the Georgia heartbeat law violates the rights to privacy and to equal protection under the state constitution.
For McBurney, the abortion “dispute is fundamentally about the extent of a woman’s right to control what happens to and within her body.” McBurney weirdly states that “[a]t some point, the pregnancy acquires its own rights.” (Emphasis added.) Ah, yes, the rights of the pregnancy. That’s how he obscures from the outset the inconvenient fact that the in utero entity is a human being from the moment of conception.
McBurney faults the Georgia legislature for supposedly embracing the “perspective” that “life begins with the establishment of a pre-fetal circulatory system.” But the Georgia heartbeat law expressly “recognize[s] unborn children as natural persons,” and it defines “unborn child” to “mean[] a member of the species Homo sapiens at any stage of development who is carried in the womb.” To be sure, it provides general protection of that unborn child against abortion only after the child’s heartbeat is detectable (around six weeks of gestation). But in doing so, the law is striking a political compromise that its sponsors deemed necessary to ensure maximal possible protection of unborn children. It is not, as McBurney absurdly contends, maintaining that the life of a human being “begins with the establishment of a pre-fetal circulatory system.” (One has to wonder if McBurney think that the law’s exceptions for rape and incest mean that the legislature believes that the lives of unborn children conceived in rape or incest start at some later time than the lives of other unborn children.)
I have no quarrel with McBurney’s observation that there is “something awkwardly arbitrary” about the heartbeat threshold. Political compromises on abortion will inevitably yield “awkwardly arbitrary” results. But what is astonishing is that McBurney maintains that that arbitrariness “only highlights the wisdom and practicality of viability as the proper separation point between a woman’s right to choose and society’s right to intervene.” Yes, McBurney actually seems to think that the viability line is less arbitrary.
As Justice Alito observed in Dobbs, the Court in Roe v. Wade “failed to justify the critical distinction it drew between pre- and post-viability abortions,” and this “arbitrary line has not found much support among philosophers and ethicists who have attempted to justify a right to abortion.” Indeed, one strong supporter of abortion rights cogently argued that the viability line is both irrelevant (and “possibl[y] pervers[e]”) and illogical: It is irrelevant, she explained, because it would have the moral standing of the human fetus turn on “capacities [that] are morally neutral, at best.” It is illogical (“exactly backward”) in that the mother “can take the fetus out when it needs to be in [in order to survive] but once it can survive an exit, it must stay in.”
Justice Alito further explains that viability depends on the quality of the available medical facilities (“can it be that a fetus that is viable in a big city in the United States has a privileged moral status not enjoyed by an identical fetus in a remote area of a poor country?”) and that, rather than being “really a hard-and-fast line,” it turns on probability estimates. He concludes that the viability line “makes no sense” and observes that “it is telling that other countries almost uniformly eschew such a line.”
McBurney gives no sign that he has given a moment of thought to these and other criticisms of the arbitrariness of viability.
There’s so much more wild stuff in McBurney’s opinion: The law’s exception for medical emergencies, he holds, violates equal protection by not applying to diagnoses of mental or emotional conditions. Laws against abortion have “an uncomfortable and usually unspoken subtext of involuntary servitude.” Georgia’s heartbeat law, he suggests, could also be a “sweeping bill of attainder.”
McBurney also disparages and insults the supreme court decision that reversed him on the “void ab initio doctrine.” The Georgia supreme court has ample cause to reverse him again.