Georgia Court Strikes Down Abortion Ban Again

As the great Yogi Berra would say, “It’s déjà vu all over again.” Georgia’s ban on nearly all abortions, called the LIFE Act, has been a lightning rod for legal challenges since it was passed in 2019. A Georgia Superior Court judge has now ruled, for the second time, that portions of the law violated Georgia’s constitution.

The Tumultuous Life of the LIFE Act

When the LIFE Act was originally passed, the United States Constitution was still widely regarded as protecting the right to have an abortion up to stage of the fetal viability, as defined by a series of U.S. Supreme Court decisions beginning with 1973’s Roe v. Wade. An immediate challenge to the law, brought in federal court, found that the law was unconstitutional under Roe and Planned Parenthood v. Casey.

However, the protections of Roe and Casey vanished after those cases were overruled by the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization in the summer of 2022. That dramatic reversal of judicial precedent threw reproductive rights into turmoil across the country as certain states rushed to enact new restrictions, but in Georgia, the LIFE Act was already on the books.

Opponents of the abortion ban challenged the law in state court, arguing that it could not have legal effect because it was unconstitutional when enacted and that it violated the privacy rights protected by the Georgia Constitution. Embracing the “void ab initio” (void from the beginning) argument raised by the plaintiffs, the superior court ruled that the law was plainly unconstitutional from the time of its passage and could not be enforced. That ruling would not stand, however, as the Georgia Supreme Court allowed the LIFE Act to take effect and then overturned the superior court decision on appeal.

That ruling did not end the case, however. The substantive issues were returned to the superior court, which was left to grapple with the medical realities of abortions performed at different stages in a pregnancy and the competing legal arguments that pitted constitutional rights against a state interest in preserving life.

Scathing Criticism of the Previous Supreme Court Decision

The superior court judge was unsparing in his criticism of the higher court’s rejection of its previous ruling. In a lengthy footnote, the superior court’s decision again outlined the precedent in favor of his previous ruling and decried the Supreme Court for saving the LIFE Act with suspect reasoning that “guaranteed the outcome but misstates judicial (and political) reality.”

That same footnote included a veiled rebuke of the political nature of both that previous ruling and Dobbs, the footnote acknowledges that “the meaning of the Constitution is no more fixed than is the composition of the majority in the highest courts of the land – especially when formerly bedrock principles such as stare decisis appear to be on the wane.” Essentially, the judge bemoans the series of events that returned the case to his court, “[b]ut here we are.”

Rebalancing the State’s Interest and Constitutional Rights

The superior court acknowledged that the state did have an interest in protecting the life of an unborn child. However, that interest had to be balanced against the rights protected by the Georgia Constitution. Those rights include the right to privacy, first recognized by the Georgia Supreme Court in 1905 as part of the “liberty” protected in Art. I, Sec. I, Para. I, which reads, “No person shall be deprived of life, liberty, or property except by dues process of law.”

This right to privacy began with a ruling that a person’s photograph could not be used in an advertisement without their permission, but over twelve decades of jurisprudence was also found to include the right to privacy in medical records, the rights of adults to engage in consensual sexual acts (striking down a sodomy law), and the right for a person to refuse medical treatment, even if it is life-saving treatment.

Recognizing that Georgia’s constitution protected the rights of pregnant people to choose their medical treatment, including abortion, the court also acknowledged that the state had a legitimate interest in protecting life. Where the LIFE Act failed, according to the superior court, was that it “infringes upon a woman’s fundamental right to make her own healthcare choices,” but it was not narrowly tailored to advance its interest.

The court found that the six-week ban was not narrowly tailored for multiple reasons. First, it prevented most people from making the decision at all because most pregnancies are not detected within the first six weeks. Second, there was only an arbitrary distinction between a five-week pregnancy, which was not protected under the LIFE Act, and a seven-week pregnancy, which was protected. Neither would be viable outside the womb. Finally, the LIFE Act impermissibly imposes a burden on pregnant people during the pre-viability phase of pregnancy because it forces them to carry those pregnancies to term.

In striking down that portion of the LIFE Act, the judge wrote, “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 outside the womb any more so than society could – or should – force them to serve as a human tissue bank or give up a kidney for the benefit of another.”

Abortion Legalized in Georgia (for One Week)

The Plaintiffs and other supporters of expanded reproductive rights celebrated the superior court’s ruling, which appeared to reopen abortion access for Georgians and those in surrounding states. However, their celebration was short-lived. The Georgia Supreme Court stepped back into the dispute a week later, granting a request from the State to stay the lower court’s ruling and restore the six-week ban for the duration of the appeal process.

In doing so, the Georgia Supreme Court (again) signaled that it would likely overturn the superior court’s decision (again) and affirm the constitutionality of the LIFE Act (again). Some would say that the law’s return to the state’s highest court was inevitable. For abortion providers and advocates on both sides of the issue, it must indeed feel like déjà vu all over again.

Related Resources:

• State Abortion Laws (FindLaw's Learn About the Law)
• SCOTUS Leaves Idaho Abortion Ban in Place (FindLaw's Federal Courts)
• Could College Athletes Be Legally Classified as Employees? (FindLaw’s Legally Weird)