The Supreme Court of Georgia upheld the state’s ban on abortion on Tuesday, despite claims by doctors and advocacy groups that the law was unconstitutional because it was passed by the Georgia legislature in 2019, three years before Roe v. Wade was overturned by the United States Supreme Court.
The ruling upholds the state’s ban on abortion after the sixth week of pregnancy, by which time most women have no idea they are pregnant. Since the ruling, most abortions in North Carolina have been banned after 12 weeks of pregnancy; in South Carolina, they have been banned after 6 weeks; and in Florida, they have been banned after 12 weeks pending a legal challenge. This effectively makes abortion largely inaccessible in the Deep South, forcing women to travel further to access care, to states like Virginia or Illinois.
The court only addressed the question of whether the state ban should have been nullified due to the date it was enacted, so the case in Georgia is far from over. The court remanded the case so that a lower court can decide whether or not abortion is protected by the state’s right to privacy provisions.
However, the most recent ruling in Georgia serves as a timely reminder that state constitutions have become critical arbiters in abortion battles across the country, as the New York Times reported.
The Georgia Supreme Court relied heavily on the U.S. Supreme Court’s Dobbs decision, which overturned a national right to abortion, when interpreting Georgia’s law, the Living Infants and Equality Act (also known as the LIFE Act), in its 6-1 decision, with one justice disqualified and another not participating.
The state court said, “Because Dobbs is the most important case law on whether the US Constitution gives people the right to have an abortion, and because both the parties and the trial court agree that the LIFE Act follows Dobbs, it follows that the LIFE Act did not violate the US Constitution when it was passed in 2019,”
Georgia Attorney General Chris Carr issued a statement Tuesday morning after the court issued its ruling, saying, “We are pleased with the court’s decision and will continue to defend the constitutionality of Georgia’s LIFE Act.”
Following the 2022 Dobbs decision, which overturned the federal constitutional right to abortion, the issue of abortion was returned to the states for regulation. Since then, many of them have passed abortion bans, prompting a wave of litigation in which abortion rights advocates allege the bans violate their constitutional rights to privacy, health care, freedom of association, and family planning.
Florida’s case is one of the most watched because, in September, the state’s Supreme Court heard oral arguments challenging the constitutionality of Florida’s 15-week ban.
North Dakota and Oklahoma’s supreme courts have ruled that their state constitutions protect the right in some situations, but other courts have ruled differently this year. However, the Supreme Court of Idaho ruled that the state’s constitution does not guarantee access to abortion, and courts in South Carolina and Indiana upheld abortion bans enacted after Dobbs.
The Iowa Supreme Court was divided 4-4 on whether or not to lift a stay preventing a ban on abortions after six weeks from taking effect. Therefore, abortion is permitted in Iowa up to the twentieth week of pregnancy.
The SisterSong Women of Color Reproductive Justice Collective filed suit in Georgia based on a state legal doctrine called void ab initio, which literally translates to “void from the beginning.” A senior staff attorney for the ACLU’s Reproductive Freedom Product, Julia Kaye, argued the case before the Georgia Supreme Court and cited the doctrine of severability to argue that the law was unconstitutional from the moment it was passed because it violated the state or federal constitution.
In November, Judge Robert C.I. McBurney of Fulton County Superior Court ruled in favor of the plaintiffs, saying that the six-week ban was enacted when “everywhere in America, including Georgia, it was unequivocally unconstitutional for governments—federal, state, or local—to ban abortions before viability.”
However, the state’s highest court temporarily reinstated the six-week ban the following week, setting the stage for Tuesday’s decision.
When the Supreme Court or this court reverses a lower court’s ruling, it is not a declaration that the underlying constitution has changed, as Mr. Petrany put it. It’s an admission of guilt and an admission that the court made a mistake, as the author puts it.
In contrast, the Georgia justices did not appear convinced by the plaintiff’s attorney’s arguments.
This article may contain commentary which reflects the author's opinion.
