Update 11/23/22: The Georgia Supreme Court has reinstated the state’s six-week abortion ban by issuing a stay. The law will remain in effect until the Georgia Supreme Court decides the case. A hearing in the case has not yet been scheduled.
Original story published 11/16/22:
The abortion landscape in Georgia has shifted once again this week with a state court judge striking down the most recent abortion law, which had been effect since July. Fulton County Superior Court Judge Robert McBurney ruled that because Georgia’s six-week abortion ban was unconstitutional at the time it became law in 2019, it remains so today, even though the protections provided by Roe v. Wade have been overturned.
It was a technical procedural ruling, leaving unanswered larger questions about whether the six-week ban itself violates state law, which was the primary focus at a court trial earlier this fall. Nevertheless, McBurney’s ruling strikes down Georgia’s abortion law for the time being, making abortion legal again everywhere in the state up to 22 weeks of pregnancy. Supporters of abortion access have celebrated the ruling as a victory, but everyone agrees that this isn’t the final word. An appeal to the Georgia Supreme Court is already underway, which will determine the next chapter in Georgia’s bruising fight over abortion care in the state.
Georgia’s void ab initio doctrine
Judge McBurney’s ruling is based on a principle of state law, which says that a Georgia law that violates the state or federal constitution is always unconstitutional, even if the constitution changes later. “This is a unique and longstanding doctrine in Georgia,” explained Anthony Michael Kreis, a constitutional law professor at Georgia State University School of Law. “Even if (laws) are later permissible, if they’re dead when they were passed, then they’re forever dead.”
Georgia’s six-week ban passed in 2019, while Roe v. Wade, which provided a federal constitutional right to an abortion, was still settled law. It was unconstitutional then, so McBurney ruled that, according to Georgia’s void ab initio doctrine—which means “void at the inception”—it’s still unconstitutional now, even though the U.S. Supreme Court overturned Roe with their decision in Dobbs v. Jackson Whole Women’s Health last May.
“Part of this (doctrine) is about political accountability,” said Kreis. “We don’t want legislators taking votes on laws they never think will go into effect.” It’s also about respect for precedent, something Judge McBurney noted in his decision: “Prior pronouncements (on abortion) carried no lesser effect and were entitled to no less deference in Georgia…than that which we must afford the Dobbs decision,” he wrote.
McBurney’s decision, which Kreis described as “the path of least resistance,” strikes down the abortion law without addressing the merits, the deeper legal questions about the nature of the law itself. The plaintiffs challenging the law in this case, a group of both doctors and civil rights and abortion rights organizations, argue that the law violates the Georgia state constitution’s privacy laws, similar to the protections Roe was based on at the federal level. Georgia’s constitution has particularly robust privacy protections, and during the court trial, ACLU attorney Julia Kaye said the 2019 law violates those protections, calling it a “tremendous intrusion onto Georgians’ lives, bodies, and health.”
By striking the abortion law down on a technical matter, McBurney left the question of privacy protections unanswered. He wrote that, given the new legal landscape created by the Supreme Court’s decision in Dobbs—which handed abortion lawmaking back to the states—the Georgia General Assembly could create new legislation banning abortion. If that happens, supporters of abortion access could challenge it in on the same merits, arguing it violates the state constitution’s right to privacy.
But that’s a big “if”: first, eyes turn to the Georgia State Supreme Court, which will hear an appeal of McBurney’s ruling, and could not only disagree with him, but could re-instate the law while they consider their own opinion.
What happens next
As expected, Georgia Attorney General Chris Carr’s office filed an appeal swiftly after the ruling was published. Carr has been a vocal supporter of the six-week ban, and recently won reelection against opponent Jen Jordan in a race that was almost singularly defined by their opposing views on enforcement of the law.
The Georgia state Supreme Court will now pick up the case, addressing Judge McBurney’s decision regarding the void ab initio doctrine. It will likely take a few months for them to issue a ruling, and right now, the big question is whether they will block McBurney’s ruling from taking effect while they hear the case, a legal move known as a “stay.” [Editor’s note: On November 23, the Supreme Court court did indeed issue a stay, once again making abortion illegal in Georgia after about six weeks gestation.]
“As it stands, without a stay, women can resume exercising their rights to reproductive care,” explained Tanya Washington Hicks, a law professor at Georgia State University School of Law who specializes in civil liberties. “But if there is a stay on enforcement of the opinion pending a ruling by the Georgia Supreme Court, then they would have to wait for the ruling.”
The Georgia Supreme Court is the highest state court, so if a majority of justices agree with McBurney’s decision, then the current six-week ban will be permanently struck down, and any new abortion ban would have to start from scratch. It’s not clear how the justices will rule: four of the five justices were appointed by Brian Kemp, who signed the abortion ban into law, but the justices aren’t considering the merits of the ban, just the question of whether the void ab initio doctrine applies.
While a stay on McBurney’s ruling could come in the next few weeks, it will take several months for the Georgia Supreme Court to issue their decision. “They have a pretty decent-sized docket (of cases),” said Washington Hicks. “But they may move this to the front of the line, given the nature of the issue.”
The political implications
Judge McBurney’s ruling leaves the door open for a new abortion law, now constitutional under Dobbs. But, he noted, legislators must do so “in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate.”
HB 481, also known as the LIFE Act, passed in 2019 on razor-thin margins over fierce Democratic opposition. Some Republicans who voted for the bill never really believed it would become law, according to legislative colleagues. And while Republicans celebrated the end of Roe, the loss of federal abortion protections galvanized Democratic voters, who turned out in force for the 2022 midterm elections, delivering the best midterm showing for a sitting president’s party in two decades. That could make Georgia’s Republican lawmakers—whose majorities shrank in both chambers—more hesitant to lean into abortion issues in upcoming legislative sessions.
“They’re playing with live ammunition now,” said State Sen. Josh McLaurin (D-Sandy Springs). McLaurin voted against HB 481 in 2019 when he held a seat in the House. “My view is that some of the more sober Republicans in charge will understand that this is a loser issue for them.”
State Sen. Ed Setzler (R-Acworth), who as a state representative helped draft the abortion law, believes the current abortion law will survive the current case and won’t require the legislature to intervene. “Judge McBurney’s action is legal nonsense,” he said. “It’s a matter of time before the state Supreme Court fully affirms the LIFE Act and puts it back into effect.”
Governor Brian Kemp similarly dismissed the ruling, issuing a statement from a spokesperson that read, in part, “Today’s ruling places the personal beliefs of a judge over the will of the legislature.”
While it certainly hasn’t resolved the roiling debate over abortion access in Georgia, the ruling out of Fulton County is, for now, the law of the land. That has supporters of abortion access celebrating, even as they gear up for more conflict to come.
“Abortion ban in Georgia lifted!” tweeted the reproductive healthcare group Carafem, which operates an abortion clinic in Atlanta. “And yeah,” the post read, “We’re still doing that.”