Georgia Supreme Court: Upheld abortion ban and jail term for physicians

Georgia Supreme Court upheld the abortion ban, took away the reproductive freedom of women, and threatened physicians with jail for providing care

OCTOBER 24, 2023

Statement from Press Secretary Karine Jean-Pierre on Georgia Supreme Court Decision Upholding Abortion Ban

Today, the Georgia Supreme Court upheld a devastating abortion ban that has stripped away the reproductive freedom of millions of women in Georgia and threatened physicians with jail time for providing care. Since the overturning of Roe v. Wade, we’ve seen the dangerous impact bans like this have had on women across the country. Women have been denied the medical care they desperately need to preserve their health, including being turned away from emergency rooms, forced to travel hundreds of miles for care, and faced complications that make it more difficult to have children in the future.

It doesn’t end there. Republican elected officials are doubling down and calling for a national abortion ban that would criminalize reproductive health care in every state. President Biden and Vice President Harris won’t stop fighting until the protections of Roe v. Wade are restored in federal law.

Summary of the Court Opinion

The Supreme Court of Georgia

October 24, 2023

Supreme Court of Georgia
Kathleen Joyner, Public Information Officer
330 Capitol Ave, SE
Atlanta, Georgia 30334
404-651-9385

STATE OF GEORGIA v. SISTERSONG WOMEN OF COLOR REPRODUCTIVE JUSTICE COLLECTIVE et al. (S23A0421)

The lawsuit giving rise to this appeal challenges the Living Infants Fairness and Equality Act (“LIFE Act”),1 which regulates abortion procedures in Georgia.

The United States Constitution as interpreted by then-controlling-but-since-overruled decisions of the United States Supreme Court. Here, we are concerned only with that ruling, and we conclude that the trial court erred. 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.

The Supreme Court of Georgia has reversed a Fulton County trial court’s decision that certain provisions of the state’s Living Infants Fairness and Equality (LIFE) Act were void ab initio, or null from the beginning, and has sent the case back to the trial court to consider the merits of the other challenges brought by opponents of the Act.

The Georgia General Assembly passed House Bill 481, also known as the LIFE Act, in 2019, and it was signed into law by the governor. At issue in this appeal are Sections 4 and 11 of the LIFE Act, which criminalize, with certain exceptions, certain abortion procedures (Georgia Code § 16-12-141) and require a physician who performs an otherwise illegal abortion procedure to report to the state Department of Health which statutory exception justified the procedure (Georgia Code § 31-9B-3).

In 2020, the United States District Court for the Northern District of Georgia concluded that the LIFE Act’s ban on certain abortion procedures was in direct conflict with binding U.S. Supreme Court precedent, including Roe v. Wade from 1973 and Planned Parenthood of Southeastern Pennsylvania v. Casey from 1992. The federal district court entered an order declaring portions of the LIFE Act unconstitutional and permanently enjoining the LIFE Act’s enforcement.

However, the U.S. Supreme Court overruled its past decisions in Roe and Casey in the 2022 case Dobbs v. Jackson Women’s Health Organization, holding that the U.S. Constitution does not confer a right to abortion. Following the Dobbs decision, the U.S. Court of Appeals for the Eleventh Circuit vacated the federal district court’s order that had halted enforcement of Georgia’s LIFE Act and reversed the district court’s judgment.

A coalition of Georgia-based physicians, reproductive health centers, and membership groups (SisterSong Women of Color Reproductive Justice Collective et al.) filed a lawsuit against the State that challenged certain provisions of the LIFE Act. The coalition claimed that the certain provisions of the LIFE Act were void ab initio under Georgia law because they violated the U.S. Constitution as interpreted by federal constitutional precedent in force at the time of the LIFE Act’s enactment (primarily Roe and Casey). The coalition also claimed that certain provisions of the LIFE Act were invalid under the due-process, equal-protection, and inherent-rights provisions of the Georgia Constitution.

In November 2022, following a bench trial, the trial court issued an order declaring Sections 4 and 11 of the LIFE Act void ab initio and enjoining the State from enforcing them.

The trial court reasoned that “controlling Georgia precedent” required it to assess the LIFE Act’s constitutionality based on “the legal environment that existed when H.B. 481 was enacted”—that is, based on Roe and cases stemming from it, rather than based on Dobbs. The trial court further reasoned that, because Sections 4 and 11 of the LIFE Act violated the U.S. Constitution as interpreted by the Roe line of cases, those sections of the Act were unconstitutional when enacted and were therefore void ab initio.

The trial court did not make any decisions on the merits of the coalition’s claims under the due-process, equal-protection, and inherent-rights provisions of the Georgia Constitution, and those claims were not part of this appeal. The Supreme Court of Georgia subsequently stayed the trial court’s order enjoining enforcement of the LIFE Act, and the Court heard oral arguments in the State’s appeal on March 28, 2023.

Today, the Supreme Court of Georgia has reversed the trial court’s judgment, holding that the trial court erred in concluding, based on since-overruled decisions of the U.S. Supreme Court, that the LIFE Act violated the U.S. Constitution when the Act was enacted. “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,” states today’s majority opinion, authored by Justice Verda M. Colvin.

Today’s majority opinion notes that the trial court’s ruling “rests on a faulty premise— that, in Dobbs, the United States Supreme Court changed not only its interpretation of the United States Constitution but also the meaning of the Constitution itself.” This premise, the majority opinion writes, “conflicts with well-established, foundational principles of law that are essential to our system of government.”

As the majority opinion explains, “the United States Constitution, not the United States Supreme Court, is the source of the Constitution’s meaning; the United States Supreme 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. 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.”

Today’s majority opinion further explains that Georgia courts must follow the U.S. Supreme Court’s most recent pronouncement on the meaning of the U.S. Constitution when determining whether a statutory law violates that Constitution.

“While ‘It is the role of this Court, not the United States Supreme Court,…to construe the meaning of the Georgia Constitution,’ the same cannot be said about the United States Constitution. ‘It is a fundamental principle that this Court is bound by the Constitution of the United States as its provisions are construed and applied by the Supreme Court of the United States.’ Thus, when the United States Supreme Court announces its interpretation of the United States Constitution, we are bound to apply that interpretation unless and until the decision is overruled,” Justice Colvin writes. “And when 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. It is clear from these well-established principles of Georgia law that a Georgia court must look to Dobbs—not Roe—in determining whether the LIFE Act was void ab initio.”

“Doing so,” the majority opinion states, “‘is not an act of judgment on our part’ but rather a simple ‘act of obedience,’ which is required of us by virtue of our position in the constitutional order.”

Justice John J. Ellington has written a dissenting opinion, stating that he believes the 2019 Act is unenforceable under Georgia’s void ab initio doctrine, which is grounded in Georgia’s constitution, because the Act was in violation of the U.S. Constitution when enacted.

“As the trial court correctly held, Section 4 of the 2019 Act was void when passed because its ban on most abortions after embryonic cardiac activity can be detected, which the parties agree occurs at approximately six weeks after a woman’s last menstrual period, would unduly interfere with a woman’s then-protected right under the United States Constitution to terminate a pregnancy before viability,” he writes, and the reporting requirement in “Section 11 falls along with Section 4.”

Justice Ellington further states that an act that is void when enacted “cannot spring to life
because of any subsequent change in the law,” such as that “wrought by the Dobbs decision.”
The provisions of an act that is void ab initio can become effective, he writes, only by reenactment. Were the Georgia General Assembly to pass new legislation restricting abortion, that
post-Dobbs legislative action would not be subject to review under pre-Dobbs federal precedent.

“I freely concede that, after the United States Supreme Court overrules its own precedent interpreting the United States Constitution, Georgia courts must follow the United States Supreme Court’s most recent pronouncement on that Constitution’s meaning. But the General Assembly, under the Georgia Constitution, must also follow that Court’s most recent pronouncement on the United States Constitution’s meaning.”

The majority opinion counters the dissenting opinion, stating that it “fails to adequately explain why Georgia law permitted, much less required, the trial court to apply now-overruled Roe-era precedent.” Although “the dissenting opinion asserts that . . . Georgia law contains a constitutional ‘doctrine’ under which state courts must determine whether a statute was void ab initio based on ‘[b]inding decisional law’ that existed when the statute was enacted,” the majority opinion states, “the dissenting opinion fails to cite any authority establishing the existence of such a doctrine.”

(Presiding Justice Nels S.D. Peterson was disqualified from this case, and Justice Andrew A. Pinson did not participate.)

Note: Section 11 of the LIFE Act amended OCGA § 31-9B-3 to require a physician who performs
an abortion after detecting a heartbeat to report to the Department of Public Health which exception to Section 4’s ban on abortions justified the procedure.