Some Georgia Supreme Court justices appeared skeptical of the argument that the state’s six-week abortion should be thrown out because it elapsed while Roe v. Wade still standing.
That’s one of the main arguments plaintiffs made when they challenged the law in Fulton County Superior Court last year, where Judge Robert CI McBurney called the law’s provisions “simply unconstitutional” because they were enacted in 2019 — three years before Roe v. Wade was toppled — and temporarily blocked by the law. The law is now in force.
McBurney ruled that lawmakers must pass a measure following last year’s Dobbs ruling against the Jackson Women’s Health Organization.
Charlie J. Bethel, Justice of the Georgia Supreme Court. Jill Nolin/Georgia Recorder
The state appealed McBurney’s decision, bringing the issue to the state Supreme Court. Judges heard oral arguments on Tuesday, the eve of the final day of the 2023 legislative session. The panel will make a decision “as soon as possible,” Chief Justice Michael P. Boggs said.
“The entire theory of the case from plaintiff’s perspective is that the LIFE statute was invalid in 2019 as a result of federal court decisions,” said Stephen Petrany, attorney general with the Georgia Attorney General’s Office. “And so the idea of Dobbs somehow not undoing that would be — it would be incoherent.”
The state argues that the 2023 ruling did not change the US Constitution, but rather offered a different interpretation of the text that should be applied retrospectively. The US Supreme Court ruling now famously called the 1973 decision “enormously wrong from the start.”
“Dobbs specifically says the previous precedent was wrong and — if anyone agrees — it says so, and it has the final say on it,” Judge Charlie Bethel said during Tuesday’s trial.
Judge Sarah Warren was more specific in probing the plaintiffs’ position.
“If you have retrospectively applied precedent, I don’t think you can artificially separate them like you’ve tried here,” Warren said.
But Julia Stone, an attorney with the American Civil Liberties Union who represents the health care providers and abortion rights advocates challenging the law, argued Tuesday that lawmakers knew in 2019 that the six-week ban on Roe v. Wade, which protected access to abortion services until the fetus was viable.
Protesters from the Atlanta Party for Socialism & Liberation before the SisterSong Women of Color Reproductive Justice Collective v. State of Georgia. Aaleah McConnell/Georgia Recorder
Passing the law anyway constitutes transgression and invalidates the law a priori, Stone argued.
“This is not a case where there was a gray area in 2019. This was a case that had 50 years of Supreme Court precedent,” Stone said.
While arguments were heard inside, a small group of protesters outside the Nathan Deal Judicial Center in downtown Atlanta expressed their contempt for the six-week abortion ban. They held signs with messages like “Abortion rights are non-negotiable” and chanted phrases like “My body, my choice” and “Unban”.
Many of the advocates said they protest because they know firsthand the mental and physical health risks women face – whether they choose to have an abortion or carry the pregnancy to term.
“The power to control your own body should be something everyone has,” said Natalie Villasana, an organizer for the Atlanta Party for Socialism and Liberation. “But instead that is in the hands of a few conservative politicians in Georgia, just as few people are able to deprive millions of people of this fundamental right. That is not acceptable.”
Reaction after the verbal dispute
Stone acknowledged after Tuesday’s hearing that some of the judges who asked questions were skeptical of the reasoning. But she said the public “can never read too much into issues” and said she still hopes the panel could block the law.
“There’s 125 years of precedent from the Georgia Supreme Court that says you’re considering the constitutionality of the law at the time it’s passed. So if you do that here, it’s a pretty simple application,” she told reporters after the hearing.
But if the judges decide to overturn McBurney’s verdict, the legal challenge will be far from resolved. For example, the plaintiffs have also argued that Georgian law violates the country’s constitutional right to privacy. Stone said she expects further appearances before the state’s highest court as it examines the constitutionality of Georgia’s law.
McBurney held a two-day trial heard arguments and testimonies in October and did not rule on other parts of the case.
The main sponsor of the bill in 2019, now Sen. Ed Setzler, speaks to reporters after attending hearings at the Nathan Deal Judicial Center on Tuesday. Aaleah McConnell/Georgia Recorder
“No matter what happens today or whatever happens here, the fight is not over. And that’s what people need to understand, that this is just one more step towards ultimately getting to the answer and hopefully justice for women in this state,” said former Democratic State Senator Jen Jordan, who recently resigned to run for attorney general and who attended the hearings on Tuesday.
Georgia State University law professor Anthony Michael Kreis, who also attended Tuesday’s hearings, later predicted the judges could side with the state on the one narrow issue before them.
“I think they struggled with this idea that the legislature should only do what they know is lawful and not try to play with rules on the backend, but at the same time they should be able to enact legislation and test the constitutionality of the doctrine as it stands. And that’s the tension they had to deal with today,” Kreis said.
Georgia was one of several states to enact new abortion restrictions in the face of a new conservative majority in the country’s highest court. The law also includes the language of personalityfor example, a provision allowing an expectant parent to claim an embryo as a dependent for Georgian taxes.
But the bill’s main sponsor, now Sen. Ed Setzler, argues that he didn’t see the measure as a way to end Roe v. to fall Wade. The state representative at the time, Setzler, took part in the oral hearing on Tuesday.
“The LIFE act wasn’t written to challenge Roe vs. Wade. The LIFE Act was written to protect Roe v. Wade,” the Acworth Republican told reporters, claiming he always believed Georgian law — and its focus on establishing personality — would be found constitutional through the court process.
/cloudfront-us-east-2.images.arcpublishing.com/reuters/XM7O6ATEK5IHJA7K3M26Y63NAI.jpg "Georgia’s anti-abortion law allows tax deductions for fetuses")
