The fate of Georgia’s “heartbeat” abortion ban depends on whether the state’s top court says the Roe v. Wade guaranteeing federal abortion rights was ever valid.
The Georgia Constitution states that “acts contrary to this Constitution or the Constitution of the United States are void.” On the face of it, the provision applies to the ban passed by the state legislature in 2019, which likely would have been struck down under the Roe in effect at the time.
But that was overturned in Dobbs v. Jackson Women’s Health Organization in 2022, Georgia Attorney General Stephen Petrany told the Georgia Supreme Court during a hearing Tuesday. The Dobbs court also specifically stated that those previous decisions were wrong and that the US Constitution has never protected access to abortion.
The state court interprets the “void ab initio” doctrine, an ancient legal concept that prohibits the enforcement of laws that were invalid when they were enacted.
Julia Stone responded on behalf of the plaintiffs that Dobbs cannot be used retrospectively to reverse a state constitutional provision and that the validity of the statute should be assessed at the time it was enacted.
The outcome of the case can only have a limited impact as very few state constitutions contain a provision comparable to Georgia’s. A final decision also will not prevent the Georgia legislature from enacting a new, virtually identical provision that would be valid under current US Supreme Court precedent.
But it would bring some relief to people in Georgia, since most abortions after the sixth week of pregnancy have been illegal there since November 2022.
“Heartbeat” law
Georgia law bans most abortions, with some exceptions, after detecting a “heartbeat,” which is said to occur about six weeks after a woman’s last menstrual period. Abortion advocates say that at this point the heart is not sufficiently developed to produce a heartbeat.
Among Roe and his descendants, the statute would have been found to violate the U.S. Constitution at the time it was enacted, a state trial judge said in October 2022. Citing the state constitutional provision, he voided the statute as of the date of its enactment.
The idea behind the doctrine of nullity ab initio is to prevent state legislators from enacting regulations that know they do not conform to then-current legal norms in the hope that one day the norms would change and be enforceable.
The state Supreme Court reinstated the law in a short, one-sided decision, barring most people from access to abortions since late November.
Petrany began by saying that the legal issue in this case was not difficult. The Living Infants Fairness and Equality Act was in effect in 2019 and is in effect today under Dobbs, he said.
Judge Charles J. Bethel noted that the practice of retrospectively applying US Supreme Court decisions is independent of the Georgia Constitution, which has no federal agency. He asked whether, under these circumstances, the federal order could control the practice of the state.
Petrany responded that federal practice does not dictate how the state constitution should be interpreted. Instead, it’s a way to explain why the doctrine of emptiness ab initio doesn’t apply here, he said. Dobbs’ retrospective application means there was no federal law on abortion in 2019, he said.
The US Constitution hasn’t changed, only the Supreme Court’s interpretation, he said. Dobbs was a “statement that the court was wrong” in its previous interpretations, he said.
The case is part of a legal battle that gained momentum after Dobbs, in which abortion rights groups argued that some state constitutions offer greater protections for the procedure than their federal equivalents. Results so far have been mixed, with the South Carolina Supreme Court agreeing with the providers, the Oklahoma Supreme Court partially agreeing, and the Idaho Supreme Court disagreeing.
“breaking the law”
The six-week ban constituted legislative overstatement from the moment it was passed, Stone said Tuesday in a Georgia court. She was immediately challenged by Justice Sarah Hawkins Warren, who said she could see how the nullity doctrine applied a priori to laws that contradicted each other but accounted for the retroactivity of US Supreme Court precedent.
Emptiness is part of the Georgia constitution, and the provision has been in place for over 125 years, Stone said. Dobbs would have retroactive effect in a federal case, but not in a state case where the state constitution is construed as applying to a state law, she said. That appears to be an artificial distinction, Warren said.
Stone also stressed that the law was unconstitutional under Roe. There is no “grey area” in this regard, she said. A court dealing with Georgia law in 2019 would have had no choice but to strike it down, she said.
But Dobbs leaves no doubt that Roe was never the law, Judge Verda M. Colvin said.
Chief Justice Michael P. Boggs and Justices John J. Ellington, Carla Wong McMillian and Shawn Ellen LaGrua also participated in the arguments. Judges Nels SD Peterson and Andrew A. Pinson were withdrawn.
Stone is a partner of Caplan Cobb LLC.
The American Civil Liberties Union, the ACLU of Georgia, the Center for Reproductive Rights, the Planned Parenthood Federation of America and Bondurant Mixson & Elmore LLP are also representing plaintiffs. The Attorney General of Georgia represents the state.
Planned Parenthood is funded by Bloomberg Philanthropies, the nonprofit organization founded by Michael Bloomberg, owner of Bloomberg Law.
The case is Georgia v. Sistersong Women of Color Reproductive Justice Collective, Ga., No. S23M0358, hearing 3/28/23.