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. Pre- viability, 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, Page 14 of 26 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.20 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 Page 15 of 26 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 Page 16 of 26 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
