Georgia revives previously unconstitutional abortion ban

FILE – Abortion rights protesters rally near the Georgia state Capitol in Atlanta on May 14, 2022 prior to oral arguments challenging the state’s restrictive abortion law. (Ben Gray/Atlanta Journal-Constitution via AP, File)

The highest court in Georgia has revived the state’s six-week abortion ban — despite the fact that when it passed in 2019, it violated the nationwide law of the land under a still-intact Roe v. Wade.

The Peach State’s strict law makes abortions illegal after cardiac activity has been detected in an embryo, typically at around six weeks of pregnancy. The statute was passed in 2019, then struck down as unconstitutional. However, the Georgia Supreme Court ruled in a 6-1 decision — with two justices abstaining — that reinvigorated the law known as the LIFE Act.

A riddle of timing

Georgia’s Living Infants Fairness and Equality Act (“LIFE Act”) was signed into law by Gov. Brian Kemp, a Republican, in  2019. At the time, Roe v. Wade — the 1973 U.S. Supreme Court ruling that established a constitutional right to an abortion — was well-settled law. It was not until June 2022 that the Supreme Court overturned Roe with the decision in Dobbs v. Jackson Women’s Health Organization.

Justice Samuel Alito’s majority opinion in Dobbs pronounced the nearly 50-year-old decision in Roe as “egregiously wrong from the start,” and said that under the current Court’s interpretation, “[t]he Constitution does not confer a right to abortion.” The ruling was a green light for many states’ so-called “trigger laws” banning abortion pending Roe being overturned to go into effect.

Regardless of it being overturned, however, Roe was binding precedent from the time the decision was handed down in 1973 until it was overruled in 2022 — and was controlling law at the time the LIFE Act was enacted.

Under Roe and the pre-Dobbs decisions thereafter, states could not constitutionally enact or enforce laws that would deprive women of their right to terminate a pregnancy during the first trimester. The Georgia LIFE Act, which bans most abortions from as early as six weeks of pregnancy — sometimes with criminal penalties — was a clear violation of Roe’s mandate.

In a ruling that would likely have been no shock to the Georgia legislature, a federal court struck down the LIFE Act in July 2020 — nearly two years before the Supreme Court ruled in Dobbs.

So what did the 2022 overruling of Roe mean for the LIFE Act? Would the Georgia legislature need to enact a new version of the law, or would the LIFE Act somehow go back in effect even though it was unconstitutional at the time it was enacted?

The Georgia Supreme Court ruled Tuesday that despite being dormant for two years, the LIFE Act is now once again valid and enforceable,  without the need for any new action by state lawmakers.

Void ab initio

As soon as the LIFE Act was put on Georgia’s books in 2019, litigation to challenge the statute began. A federal court declared it unconstitutional in its entirety and permanently enjoined any enforcement of the law. However, once the Supreme Court overruled Roe in 2022, Georgia appealed and scored an easy win at the U.S. Court of Appeals for the 11th Circuit. Given that any constitutional protection of the right to abortion had been eradicated, the 11th Circuit resurrected Georgia’s LIFE Act by throwing out the lower court’s order.

Challengers to the law then filed a second lawsuit, this time arguing in Georgia state court that the LIFE Act (H.B. 481) had been “void ab initio” — or “void from inception.” The state court lawsuit did not assert any federally-protected right to abortion, but instead focused on the procedural defects of allowing the LIFE Act to spring back into action.

Plaintiffs argued that the statute should be analyzed against “the legal environment that existed when H.B. 481 was enacted,” not against what happened in Dobbs two years later. Because the law was “unequivocally unconstitutional” when it was adopted, it is void for all time, they said.

“A faulty premise” and the role of the justices

Though it might seem that a statute that was clearly illegal when adopted would be void from the start, the Georgia Supreme Court came to an entirely different conclusion. It ruled that H.B. 481 would not fail for voidness, reasoning that Dobbs did not change the meaning of the Constitution. Rather, it reasoned, the Constitution never meant to confer a right to abortion — and only its interpretation of that has changed.

Justice Verda M. Colvin, the first African American woman judge appointed by a Republican governor to Georgia’s highest court, wrote for the six-member majority and called the idea that the U.S. Supreme Court changed the meaning of the Constitution in Dobbs a “faulty premise.”

Colvin explained that the justices are “not the source of the Constitution’s meaning,” and have no power to amend the Constitution on their own. Rather, the judge elaborated, the Constitution’s meaning was fixed at the time the document was ratified, and the Court only has power to change its interpretation.

Concluding that “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,” Colvin ruled that any perceived conflict between the LIFE Act and the Constitution in 2019 amounts to no real conflict at all.

Colvin did devote a few paragraphs of the 38-page ruling to acknowledging that Georgia Supreme Court’s ruling “might appear to be an unusual result.”

“Because Roe and its progeny were controlling authority on the meaning of the United States Constitution when the LIFE Act was enacted, one reasonably could have expected at that time that the constitutionality of the LIFE Act would be evaluated under Roe-era precedent,” Colvin sympathized.

Despite that reasonable expectation, Colvin clarified, the Georgia court has no choice but to be “obedien[t]’ and “faithfully apply” Dobbs now, without considering what would have been the outcome under Roe.