On June 24, 2022, the United States Supreme Court issued its landmark decision on abortion. Dobbs v. Jackson Women’s Health Orgturning around Roe vs. Wade and the right to abortion before viability, which Walnut it seemed to be coded. The Supreme Court’s decision fundamentally changed the constitutional landscape of women’s right to make reproductive health choices and created ambiguity about the scope and breadth of the right to privacy in the United States.
It Dobbs the decision had surprisingly seismic “on the ground” consequences. Before Dobbsthirteen states had enacted “labor laws” that, after promulgation Dobbs decision, abortion restrictions were immediately applied. Under Walnut, these restrictions would undoubtedly be unconstitutional. Although it didn’t start immediately after that Dobbs due to pending litigation at the time, Georgia’s abortion law, known as the Live Infant Justice and Equality (“LIFE”) Act, was passed in 2019 and went into effect in July 2022. fetus (usually as the pregnancy approaches six weeks) and was widely regarded as one of the most restrictive anti-choice laws in existence in the United States.
On Tuesday, November 15, 2022, the Fulton County Superior Court (J. McBurney, presiding) found that the LIFE Act violated the Georgia Constitution. In Sistersong Women of Color Reproductive Justice Collective v. Georgia State (“Sister Song”)The plaintiffs consisted of Georgia-based obstetrician-gynecologists (and their members), reproductive health centers and membership groups that describe themselves as committed to reproductive freedom and justice. The plaintiffs argued that the LIFE Act was invalid from the beginningor having no legal effect ab initio because the LIFE Act came into force when Walnut struck down abortion access restrictions like the LIFE Act. The plaintiffs argued that the LIFE Act therefore violated Georgia’s constitutional right to liberty, privacy, and/or equal protection.
Ultimately, the Supreme Court found two sections of the LIFE Act invalid. The first provision (OCGA § 16-12-141(b)) prohibited any abortion after a fetal heartbeat was detected. The second provision (OCGA § 31-9B-3(a)) required the physician to report abortion procedures to the Department of Public Health, clearly stating the applicable statutory exception (day, emergency medical care, etc.) until the ban on abortions. A Supreme Court judge has ruled that the Georgia Constitution says it is invalid Any law passed by the Georgia Legislature which, when enacted, would violate the United States Constitution. When the Georgia General Assembly passed the LIFE Act in 2019, it among other things made it unconstitutional for governments to ban pre-viability abortions or require local governments to report under the LIFE Act. Therefore, according to the Supreme Court, the LIFE Act “did not become the law of Georgia when it was enacted, and it is not the law of Georgia now.” The state of Georgia procedurally appealed the decision of the Supreme Court. That appeal remains pending.
Whether the Georgia Supreme Court revives the LIFE Act or the Georgia Legislature passes similar legislation post-electionDobbs, the legal strategies that plaintiffs employ in this particular case may well travel across state lines. Although this decision was made under Georgia law, the argument on which it was based Sister song and has been ascribed by the Supreme Court, is essentially grounded in common law principles. The Supreme Court relied on an 1886 decision of the United States Supreme Court, which stated in relevant part that “[a]An unconstitutional act is not a law … it is as inoperative as if it had never been enacted.” Norton v. Shelby County, 118 US 425, 442 (1886). Unless the Supreme Court revisits this more than a century-old decision, its logic could be used across the United States to challenge launch laws, entrenching the theories advanced. Sister song as valuable and replicable tools to be used by other litigants (and other courts) in other states, such as post-Dobbs the legal landscape continues to be defined.