(CN) – Georgia’s highest court on Monday was asked to weigh whether the doctrine of sovereign immunity bars state judges from hearing a challenge to the state’s “fetal pain” law.
The law at issue in the underlying lawsuit is a 2012 statute that says because a fetus can experience pain after 20 weeks of gestation, doctors who perform an abortion after that point in a pregnancy can be charged with a felony punishable by up to 10 years in prison.
The only exceptions to the law are in the case of medically-futile pregnancies in which the fetus has congenital or chromosomal defects, or when the mother’s life is endangered.
Three Atlanta-area abortion doctors, represented by the American Civil Liberties Union challenged the law in Fulton County court, arguing that a fetus is not viable at 20 weeks, and therefore that in passing the legislation, state lawmakers violated a woman’s right to access to abortion of a pre-viable fetus.
In its landmark Roe v. Wade decision in 1973, the U.S. Supreme Court upheld a woman’s right to abortion until the time a fetus is viable — now considered to be about 24 weeks after conception.
The plaintiffs further argued the law violates a woman’s right to privacy because it gives district attorneys unlimited access to all abortion patients’ medical records.
“ … district attorneys do not have the statutory right to access the medical records of any other patients without any sort of due process,” the doctors’ complaint says. “By stripping their medical records of the same level of privacy protections enjoyed by all other patients, the Act causes irreparable harm to Plaintiffs’ patients.”
A Fulton County Superior Court judge blocked the Georgia law from going into effect in January 2013, but in October 2015, a second Fulton County judge, Superior Court Judge Kimberly Esmond Adams, dismissed the doctors’ lawsuit and lifted the injunction.
In May 2016 the case was back before Judge Adams because the doctors claimed they never received notice of her decision and therefore missed the 30-deadline to file an appeal.
The plaintiffs asked the judge to vacate her order and reenter it, so that they could appeal it to the Georgia Supreme Court. After the state attorney general’s office said it would not oppose such an action, Adams agreed to the plaintiffs’ request.
On Monday, Georgia Solicitor General Sarah Warren told the state Supreme Court that a 1991 amendment the Georgia’s constitution prohibits lawsuits against the government unless the legislature expressly grants a waiver allowing a lawsuit to go forward.
Warren said because no waiver has been issued in regard to the doctors’ lawsuit, they have no standing to pursue their case.
“The people of Georgia meant what they said when they passed the 1991 amendment,” Warren said.
Katelyn McCreary, spokeswoman for Georgia Attorney General Christopher Carr declined to comment on the case, but did provide Courthouse News with the office’s brief, which states: “The right to privacy does not contain a waiver of sovereign immunity. Nor does the Judicial Review Clause or the Separation of Powers Clause of the Georgia Constitution. Those facts are dispositive of this case.”
But Don Samuel, one of three attorneys representing the plaintiffs on behalf of the ACLU, said “Our position is that the sovereign immunity clause in the Georgia Constitution does not apply when enforcing constitutional rights. If what the state is saying is correct, then we’re being deprived of the right to enforce the Bill of Rights.”
“If the state prevails, we will be the only state in the country that has a prohibition on enjoining constitutional violations,” Samuel said.
During oral arguments on Monday, Justice David Nahmias asked whether the ACLU attorneys could get around the issue of sovereign immunity by simply suing government officials in their personal, rather than official capacities.
Samuel said the state’s position has been that those lawsuits are also barred.
He told Nahmais that if the court ruled otherwise, and that allowed the doctors’ lawsuit to proceed, “We can live with that.”
Samuel told Courthouse News a decision on the issue of sovereign immunity is expected in late March.
“If they rule we can sue the state, then we’ll go back to Superior Court and litigate the case,” he said.
The plaintiffs seek declaratory and injunctive relief.
Also representing the plaintiffs are Susan Camp and Alexa Kolbi-Molinas.
Two state Supreme Court justices have recused themselves from the case on the grounds that they previously served as solicitor general. They are Justices Britt Grant and Nels Peterson.
They have been replaced on the panel by Cobb County Superior Court Judge Ann Harris and Chatham County Superior Court Judge Penny Haas Freesemann.