ATLANTA (CN) — Georgia’s highest court allowed the state’s six-week ban on abortions to remain on the books in an opinion issued Tuesday morning, overturning a lower court’s ruling that the law was unconstitutional when it was enacted.
The 6-1 decision by the Georgia Supreme Court does not impact current abortion access in the Peach State. The law banning most abortion procedures after a fetal heartbeat can be detected was reinstated by the high court last November while it considered the state’s appeal of the lower court’s decision.
The majority opinion on Georgia House Bill 481, also called the Living Infants Fairness and Equality Act, holds that Fulton County Judge Robert McBurney was wrong in ruling that the 2019 law was “unequivocally unconstitutional” when it was enacted based on since-overruled U.S. Supreme Court precedent that allowed abortions past six weeks.
“The holdings of United States Supreme Court cases interpreting the United States Constitution that have since been overruled cannot establish that a law was unconstitutional when enacted and therefore cannot render a law void ab initio,” Justice Verda M. Colvin wrote on behalf of the majority. The legal term “ab initio” means “null from the beginning.”
Abortion providers and doctors challenging the LIFE Act had argued that portions of it would have been deemed unconstitutional under the U.S. Supreme Court’s precedents in Roe v. Wade and Planned Parenthood v. Casey when it was enacted.
In its 2022 Dobbs v. Jackson Women’s Health Organization ruling, the U.S. Supreme Court tossed out the two decisions guaranteeing the right to abortion.
“[W]hen the United States Supreme Court overrules its own precedent interpreting the United States Constitution, we are then obligated to apply the court’s new interpretation of the Constitution’s meaning on matters of federal constitutional law,” Colvin wrote.
The majority pointed out that the U.S. Supreme Court changed only its interpretation of the Constitution in Dobbs, not the meaning of the Constitution itself.
“The text of the United States Constitution has not been amended since the LIFE Act was enacted. Thus, the 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 opinion states.
The American Civil Liberties Union of Georgia said in a statement Tuesday that the decision “disregards long-standing precedent that a law violating either the state or federal Constitution at the time of its enactment is void from the start under the Georgia Constitution.”
In a 38-page dissenting opinion, Justice John J. Ellington wrote that the law was void when passed because its ban on most abortions after six weeks “would unduly interfere with a woman’s then-protected right under the United States Constitution to terminate a pregnancy before viability.”
The LIFE Act prohibits abortions once an ultrasound can detect electrical impulses from the cells inside an embryo — described by the law as a “detectable human heartbeat" — typically around six weeks of pregnancy and before most people know they are pregnant.
Ellington opined that a void statute can become effective only by passage of a new law, and requiring new legislation could give Georgia citizens a chance to “communicate to their elected representatives their preferences in light of such a dramatically altered legal landscape.”
Presiding Justice Nels S.D. Peterson was disqualified from the case and Justice Andrew A. Pinson did not participate.
Republican Governor Brian Kemp, who signed the act into law in 2019, applauded the majority on Tuesday for ruling that “our written Constitution controls over judge-made law.”
“Today’s victory represents one more step towards ending this litigation and ensuring the lives of Georgians at all ages are protected,” Kemp said in a statement.
The case has been sent back to the Fulton County judge to address other claims brought by challengers, including allegations that the six-week ban violates Georgians’ rights to due process, equal protection and privacy.
SisterSong Women of Color Reproductive Justice Collective, one of the reproductive health organizations that sued to block the law, condemned the decision in a statement from executive director Monica Simpson, calling it “devastating.”
“Our people will continue to face the horrible reality that they are in today where Georgians are suffering because they cannot access abortion care,” Simpson said. “This abortion ban has forced Georgians to travel across state lines at great expense or continue the life-altering consequences of pregnancy and childbirth against their wills.”
SisterSong, along with Planned Parenthood Southeast and other reproductive health care providers represented by the ACLU of Georgia, sued the state in July 2022, alleging that the law violates the Georgia Constitution's right to privacy by forcing "pregnancy and childbirth upon countless Georgians" and prohibiting "medically appropriate care for patients suffering pregnancy complications and miscarriages."
The challenge came on the heels of the Supreme Court's Dobbs decision, and was filed just one week after the 11th Circuit panel allowed the LIFE ACT to take effect, tossing out an earlier ruling by a Georgia federal judge blocking enforcement of the law.
Julia Kaye, senior staff attorney with the ACLU Reproductive Freedom Project, called Tuesday’s decision “disappointing” but said the fight is “far from over.”
“A law that forces the immense pains, risks, and life-altering consequences of pregnancy on Georgians against their will is a clear violation of Georgians’ state constitutional rights, and we’ll keep doing everything in our power to block this cruel law for good,” Kaye said.
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