Most abortions are again illegal in Georgia pending a decision from the state Supreme Court.
A unilateral court ruling on Wednesday forced abortion providers to send patients home without treatment. The legal issue depends on the state’s ability to pass laws that are invalid at the time the legislature approves them.
Last week, Fulton County Superior Court Judge Robert CI McBurney blocked the state’s controversial law that bans abortions once cardiac activity is detected in the fetus, typically six weeks into a pregnancy, before most women know they’re pregnant are.
McBurney ruled that provisions of the law were unconstitutional because they were passed in 2019 while Roe vs. Wade was still the law of the country. The law went into effect this summer after the Supreme Court overturned the long-standing precedent. Georgia law states that laws that are illegal if passed are void, McBurney ruled, citing a doctrine called void ab initio, or void ab initio.
When the law was passed, Roe v. Wade’s right to abortion was based on Fourteenth Amendment privacy protections, McBurney therefore argued, a statute that breaching those protections was unconstitutional.
“The Dobbs majority isn’t any more ‘correct’ than the majority that gave birth to Roe or Casey,” McBurney said. “Despite his frothy language belittling the views of previous judges, the magic of Dobbs is not his particular insight into historical ‘facts’ or his monopoly on constitutional hermeneutics. It’s just numbers. Today, more judges believe that the US Constitution does not protect a woman’s right to choose what to do with her body than it did in the same institution 50 years ago.”
State attorneys argued a different interpretation of nullity from the start, saying it meant that a statute that is unconstitutional now was unconstitutional when it was written. They argue that McBurney is misapplying the law and that overturning Roe v. Wade by the US Supreme Court means there has never been constitutional protection for abortion rights.
“The LIFE Act is clearly constitutional now, so it wasn’t ‘void’ when it was enacted in 2019, under the same federal constitution in effect today,” the state argued in a filing. “Nevertheless, the Supreme Court barred the LIFE Act on the theory that Roe’s move to Dobbs was effectively an amendment to the federal constitution. But that doesn’t make sense because overturned court decisions have no authority at all. The High Court has fundamentally misunderstood the role of the courts, which only interpret the law in the context of individual decisions.”
“Courts don’t change the Constitution, and the Constitution doesn’t change just because a court’s view of it changes. A later overturned court decision is no
law at all, and it cannot overrule the LIFE Act.”
Judges will sift through the law and relevant previous cases before reaching a decision, said Tangi Bush, director of legal affairs for the New Georgia Project. It’s not yet clear how long that might take, but it will likely be a high priority.
“I think that given that we literally went 180[degrees]in seven days, there might be more pressure to make that decision a little faster, I don’t think they’re going to risk the accuracy of the law, but I think this will be at the top of the list. Maybe that buys us a little less time to make a final decision. I think there’s a lot of pressure because people are suddenly angry again.”
The quick halt is painful for abortion providers, who have resumed offering services to people more than six weeks pregnant and reported high demand, including people calling from other states to make appointments. These patients, including those waiting in waiting rooms at the time of the decision, are to be turned away.
Monica Simpson, executive director of the SisterSong Women of Color Reproductive Justice Collective, the lead plaintiff in the case, said she was frustrated and disappointed, but not surprised
“Georgia’s governor and attorney general are doubling down on controlling access to reproductive health care, and while the stay has been granted, we will not stop fighting until this ban, steeped in white supremacy, is lifted,” she said. “All Georgians — including black women and queer, trans, low-income, and rural people — should have the freedom to choose to have children, not have children, and to raise their families in thriving communities. We will not let this stop us from realizing this vision.”
“In the past week we have seen an (outbreak) of need for abortion treatments in the Southeast,” the Atlanta Feminist Women’s Health Center wrote in a statement. “Today we have to turn away many patients again. This ban is cruel and will particularly harm black communities and other communities of color who face significant barriers to care, such as systemic racism, state criminalization and financial hardship.”
Opponents of abortion hailed the decision as a victory for their cause.
“Lives are now being saved because our Attorney General acted swiftly to reintroduce the law after a judge delivered what appeared to be a political ruling temporarily quashing it,” said Cole Muzio, president of the conservative lobby group Frontline Policy Council, in a tweet. “Real leadership saves lives!”
But the attorneys representing SisterSong vowed to keep fighting.
“The reintroduction of this extreme abortion ban will do immense harm, particularly to black Georgians and those with the least resources – who are unlikely to be able to travel abroad for care and are most likely to suffer severe medical consequences from forced pregnancy and childbirth. said Julia Kaye, attorney for the American Civil Liberties Union’s Reproductive Freedom Project. “While this verdict is devastating, the case is not closed. We will never stop fighting to ensure that everyone, regardless of geography, race or income, has the power to control their own body and their future.”
