Six-Week Abortion Ban Undergoes Georgia Supreme Court Scrutiny

The fate of Georgia’s “heartbeat” abortion ban hinges on whether the state’s top court says the Roe v. Wade precedent guaranteeing the federal right to an abortion was ever valid.

Georgia’s constitution says that “acts in violation of this Constitution or the Constitution of the United States are void.” On its face, the provision applies to the ban, adopted by state lawmakers in 2019, which likely would have been struck down under Roe, which was in effect at the time.

But that was overruled in Dobbs v. Jackson Women’s Health Organization in 2022, Georgia Solicitor General Stephen Petrany told the Georgia Supreme Court during oral argument Tuesday. The Dobbs court, moreover, explicitly said that those prior decisions were wrong, and that the US Constitution has never protected access to abortion.

The state high court is interpreting the “void ab initio” doctrine, an old legal concept that prohibits the enforcement of laws that were invalid when adopted.

Julia Stone, arguing for the plaintiffs, countered that Dobbs couldn’t be applied retroactively here to invalidate a state constitutional provision, and that the law’s validity must be assessed as of the moment of its enactment.

The case’s outcome may have limited impact, as very few state constitutions contain a provision comparable to that of Georgia’s. A decision striking the law also won’t prevent Georgia lawmakers from enacting a new, virtually identical provision that would be valid under current US Supreme Court precedent.

But it would give people in Georgia some relief, as most abortions after the sixth week of pregnancy have been illegal there since November 2022.

‘Heartbeat’ Law

The Georgia law bans most abortions, with some exceptions, after a “heartbeat” is detected, which allegedly occurs at about six weeks after a woman’s last menstrual period. Abortion advocates say the heart isn’t sufficiently developed by that point to produce a heartbeat.

Under Roe and its progeny, the law would have been found to violate the US Constitution at the time it was adopted, a state trial judge said in October 2022. Relying on the state constitutional provision, he declared the law void from the time of its enactment.

The idea behind the void ab initio doctrine is to prevent state lawmakers from enacting provisions knowing that they didn’t meet then-current legal standards, in the hope that one day standards would change and they would be enforceable.

The state supreme court reinstated the law in a brief, one-page order, leaving most people without access access to abortion since late November.

Petrany began by saying there’s nothing difficult about the legal question in this case. The Living Infants Fairness and Equality Act was valid in 2019, and it’s valid today under Dobbs, he said.

Justice Charles J. Bethel noted that the practice of applying US Supreme Court decisions retroactively is independent from the Georgia Constitution, which isn’t predicated on any federal authority. He asked if the federal rule can control the state’s practice in these circumstances.

Petrany replied that the federal practice isn’t dictating how the state constitution must be interpreted. Instead, it’s way to explain why the void ab initio doctrine doesn’t apply here, he said. Applying Dobbs retroactively means there was no federal right to abortion in 2019, he said.

The US Constitution hasn’t changed, just the top court’s interpretation of it, he said. Dobbs is a “declaration that the court was wrong” in its previous interpretations, he said.

The case is part of a litigation trend that gained momentum after Dobbs, in which abortion rights groups argued that some state constitutions provide greater protections for the procedure than their federal analog. So far, the results have been mixed, with the South Carolina Supreme Court agreeing with the providers, the Oklahoma Supreme Court agreeing in part, and the Idaho Supreme Court disagreeing.

‘Legislative Overreach’

The six-week ban represented a legislative overreach from the moment it was adopted, Stone told the Georgia court Tuesday. She was immediately challenged by Justice Sarah Hawkins Warren, who said she could see how the void ab initio doctrine applies to laws that contradict one another, but that account for the retroactivity of US Supreme Court precedent.

Voidness is part of the Georgia Constitution, and the provision has been applicable for over 125 years, Stone said. Dobbs would have retroactive effect in a federal case, but not in a state case interpreting the state constitution as applied to a state law, she said. That seems like an artificial distinction, Warren said.

Stone also emphasized that the law was unconstitutional under Roe. There is no “gray area” in that respect, she said. A court looking at the Georgia law in 2019 would have had no choice but to strike it down, she said.

But Dobbs doesn’t leave any doubt that Roe was never the law, Judge Verda M. Colvin said.

Chief Justice Michael P. Boggs, and Justices John J. Ellington, Carla Wong McMillian, and Shawn Ellen LaGrua also participated in the arguments. Justices Nels S.D. Peterson and Andrew A. Pinson were recused.

Stone is a partner with Caplan Cobb LLC.

The American Civil Liberties Union, the ACLU of Georgia, the Center for Reproductive Rights, Planned Parenthood Federation of America, and and Bondurant Mixson & Elmore LLP also represent the plaintiffs. The Georgia Attorney General’s Office represents the state.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

The case is Georgia v. Sistersong Women of Color Reproductive Justice Collective, Ga., No. S23M0358, oral arguments 3/28/23.