Georgia Supreme Court Won’t Upend State’s Six-Week Abortion Ban
- October 27, 2023
The Georgia Supreme Court reversed October 24 a trial court order that struck down the state’s “post-heartbeat” ban on abortion.
In 2019, Georgia enacted the Living Infants Fairness and Equality (LIFE) Act to criminalize abortions—with limited exceptions—after detectable fetal cardiac activity, which typically occurs around six weeks after the last menstrual period.
The trial court ruled in November 2022 that the ban was void ab initio because it was unconstitutional when enacted in 2019 before the Supreme Court overturned Roe v. Wade, 410 U.S. 113 (1973). According to the trial court, under the Georgia Constitution, laws that violate the U.S. Constitution at the time of enactment are void and may not be subsequently revived without further legislative action. Sistersong Women of Color Reproductive Justice Collective v. Georgia, No. 2022CV367796 (Ga. Super. Ct. Nov. 15, 2022).
But the high court disagreed, noting the intervening decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct 2228 (2022), which found no constitutional right to an abortion, did not change the meaning of the U.S. Constitution, only the U.S. Supreme Court’s interpretation of it.
The Court “has no power to amend the Constitution through interpretation; and the text of the United States Constitution has not been amended since the LIFE Act was enacted,” the Georgia high court said. “[T]he United States Constitution means today what it meant when the LIFE Act was enacted in 2019, even if the United States Supreme Court’s interpretation of the Constitution has changed,” the high court added.
Georgia courts must apply now-controlling U.S. Supreme Court precedent, which in this case, is Dobbs, not Roe. Under Dobbs, the LIFE Act was not void ab initio when enacted in 2019, the high court concluded.
Reversing, the high court remanded to the trial court for further proceedings on plaintiffs’ remaining claims that the ban violates the rights to privacy and equal protection under the Georgia Constitution.
While the trial court permanently enjoined enforcement of the disputed LIFE Act provisions, the Georgia Supreme Court previously granted an emergency petition to stay that order while it was under appeal, meaning that the ban has been in effect for more than a year.
A dissenting opinion noted that under the unique provision of the Georgia's constitution, courts have an affirmative duty to declare state laws that violate either the federal or state constitution void.
“Under well-settled Georgia law, a legislative act that is unconstitutional on the date it is enacted is void from its inception and forever afterward,” the dissent argued. “[A] legislative act that was void at its inception can become effective only by passage of a new legislative act that is not void,” the dissent said.
Georgia v. Sistersong Women of Color Reproductive Justice Collective, No. S23A0421 (Ga. Oct. 24, 2023).