On June 24, 2022, the United States Supreme Court issued its seminal decision on abortion, Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and the right to terminate a pregnancy before viability, which Roe had seemingly codified. The Supreme Court’s decision fundamentally altered the constitutional landscape of a woman’s right to make reproductive health choices and created ambiguity about the scope and breadth of the right to privacy in the United States.
The Dobbs decision unsurprisingly had seismic ‘on the ground’ repercussions. Prior to Dobbs, thirteen states had enacted “trigger laws” that, upon the issuance of the Dobbs decision, immediately sprung restrictions on abortion. Under Roe, these restrictions would unquestionably have been unconstitutional. Although not immediately triggered after Dobbs due to then-pending legal proceedings, Georgia’s abortion law, known as the Living Infants Fairness and Equality (“LIFE”) Act, was passed in 2019 and became effective as of July 2022. This law banned abortions after cardiac activity was detected in an embryo (typically as the pregnancy approaches six weeks) and was widely considered as being among the most restrictive anti-choice statutes that existed in the United States.
On Tuesday, November 15, 2022, the Superior Court of Fulton County (J. McBurney, presiding) found that the LIFE Act violated Georgia’s Constitution. In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia (“Sistersong”), the Plaintiffs consisted of a coalition of Georgia-based obstetrician-gynecologists (and its members), reproductive health centers, and membership groups who describe themselves as committed to reproductive freedom and justice. Plaintiffs argued that the LIFE Act was void ab initio, or having no legal effect from inception, because the LIFE Act was enacted when Roe precluded restrictions on abortion access like those the LIFE Act imposed. Plaintiffs posited that the LIFE Act therefore violated Georgia’s constitutional right to liberty, privacy, and/or equal protection.
Ultimately, the Superior Court found that two sections of the LIFE Act were invalid. The first provision (O.C.G.A. § 16-12-141(b)) prohibited any abortion from taking place after a fetus had a detectable heartbeat. The second provision (O.C.G.A. § 31-9B-3(a)) mandated physician reporting of abortive procedures to the Department of Public Health with a clear indication of the applicable statutory exception (e.g., medical emergency, etc.) to the near abortion ban. The Superior Court Judge ruled that the Georgia Constitution declares to be void any law passed by the Georgia legislature that would, at the time of its enactment, violate the United States Constitution. When the Georgia General Assembly enacted the LIFE Act in 2019, among other things, it was unconstitutional for governments to ban abortions before viability or for local governments to mandate the sort of reporting requirement set forth in the LIFE Act. Therefore, according to the Superior Court, the LIFE Act “did not become the law of Georgia when it was enacted and it is not the law of Georgia now.” Procedurally, the State of Georgia has appealed the decision of the Superior Court. That appeal remains pending.
Regardless of whether the Georgia Supreme Court resurrects the LIFE Act or if the Georgia legislature passes similar legislation post-Dobbs, the legal strategies that the plaintiffs employed in this particular case may travel well across state lines. Although this decision was issued pursuant to Georgia law, the argument relied upon by Sistersong and credited by the Superior Court is inherently grounded in common law principles. The Superior Court relied upon a 1886 decision of the United States Supreme Court stating in pertinent part that “[a]n unconstitutional act is not a law… it is… as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U.S. 425, 442 (1886). Unless the Supreme Court were to revisit this more than century- old decision, its logic may be used throughout the United States to challenge trigger laws, entrenching the theories advanced in Sistersong as valuable and replicable tools to be used by other litigants (and other courts) in other states as the post-Dobbs legal landscape continues to be defined.
