Georgia Supreme Court Upholds Abortion Ban

Last month, the Georgia Supreme Court rejected a challenge to the state's six-week abortion ban, a ruling that preserves the status quo in the state. There is effectively no legal access to the procedure.

The ruling did not come as a surprise to those who have followed the legal battle closely. The court signaled last year that it would not overturn the abortion ban when it allowed the law to remain in effect while it considered the merits of the latest lower court ruling to find the ban unconstitutional.

The ban, promulgated in 2019 as the LIFE Act, has been hotly contested since it was signed into law. Substantive challenges under Georgia's state constitution will now be considered by the same judge who ruled the ban unconstitutional last year.

The Narrow Issue of the Law's Viability

The court's legal analysis focused on whether a provision in Georgia's constitution prevented the legislature from enacting a plainly unconstitutional law. The ruling included no analysis of the merits of the abortion ban or its impact on public health or individual liberty, as is usual in challenges to abortion bans. Instead, the justices examined a legal doctrine called “void ab initio," (Latin for "void at the outset"). Was the Georgia legislature able to enact a law that clearly violated Roe and Casey when it was first passed? And how does the Supreme Court's recent overturning of Roe affect the analysis?

The majority decided that because only the interpretation of the U.S. Constitution had changed, as opposed to a constitutional amendment, the LIFE Act could breathe new life. They held that the LIFE Act's initial nullity was based on a mistaken legal fiction. The dissent argued that because the abortion ban was unconstitutional when signed into law, it was moribund and could not be resurrected by a subsequent shift in jurisprudence.

As a result of the majority opinion, the thorny issue of whether a woman in Georgia should actually have the right to terminate a pregnancy was avoided. The majority opinion found its basis in upholding the legislature's power to enact the restrictions, rather than any merits of the law.

Timeline of Georgia's Legal Battle over Abortion Rights

Looking at Georgia's LIFE Act and subsequent legal action over it can help put the court's recent decision in context:

• May 2019 – Georgia's governor signs the LIFE Act, which would ban most abortions after six weeks of conception.
• June 2019 – Reproductive rights groups first filed suit to challenge the LIFE Act.
• October 2019 – A preliminary injunction from the U.S. District Court prevented the LIFE Act from taking effect.
• July 2020 – The U.S. District Court ruled that the LIFE Act is unconstitutional under the precedent of Roe v. Wade.
• June 24, 2022 – The U.S. Supreme Court overturned Roe in its decision in Dobbs v. Jackson Women's Health Organization.
• July 2022 – The federal court injunction is lifted, in light of Dobbs, and the LIFE Act is allowed to take effect.
• July 2022 – Reproductive rights groups sued in state court, arguing that the LIFE Act violates Georgia's state constitution.
• November 15, 2022 – State court ruled that the LIFE Act is void because it was unconstitutional at the time it was enacted.
• November 23, 2022 – The Georgia Supreme Court, without providing reasoning, allowed the LIFE Act to take effect while it considered the appeal of that state court ruling.
• October 24, 2022 – Georgia Supreme Court reverses the lower court decision, leaving the LIFE Act in effect.

Sidestepping Dobbs

The legal battle will now resume in the lower Georgia court, where opponents of the abortion ban will argue that the law violates principles enshrined in Georgia's state constitution, including the right to privacy under state law. This argument is independent of the federal precedent of Roe that was reversed in Dobbs, which arose from the interpretation of the U.S. Constitution.

The privacy protections invoked by challengers of the ban rely on state-law precedents that are over 100 years old, but they have more recently been described by the Georgia Supreme Court as far more expansive than the protections of the U.S. Constitution (which formed the original basis for Roe). This right to privacy includes robust protections for personal decision-making in personal decisions and the right to choose or refuse medical treatment. Opponents of the abortion ban will certainly argue that those fundamental human rights, protected by the constitution of Georgia, are infringed by the law.

It is inevitable that the issue of whether the LIFE Act comports with the state's constitution will again return to the Georgia Supreme Court.

Related Resources:

• The Impact of Dobbs v. Jackson Women's Health (FindLaw's Federal Courts Blog)
• Roe v. Wade: Essential Information (FindLaw's Learn About the Law)
• Abortion (FindLaw's Learn About the Law)