ATLANTA — The Georgia Supreme Court will soon decide whether the abortion law the Legislature passed in 2019 should remain in effect — or if, as attorneys for abortion providers argued Tuesday, it was illegal from the start.
In 2019, Georgia passed a law that bans most abortions once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many women know they are pregnant.
Attorneys representing abortion rights activists and providers, argued that when the law passed in 2019, Roe v. Wade was the law of the land and the state constitution does not allow the Legislature to enact statutes that violate the law, which lawyers call “void ab initio.” The 1973 U.S. Supreme Court Roe v. Wade ruling, which guaranteed a right to an abortion until a fetus was viable outside the mother’s body, was overturned last summer.
Julia Stone, an attorney representing abortion rights activists and providers, said the purpose of the “void ab initio” clause is to keep the Legislature from enacting statutes that go against settled law. The clause was a result of a Supreme Court decision in Beall v. Beall, an 1850 case.
“This clause first appeared in our constitution in 1861,” Stone said. “And Beall noted that the legislative power was the power ‘most apt to overleap its bounds’ and that when the Legislature did overreach, ‘those bounds shall be adjudged and rendered vain and fruitless,’ and their acts shall be considered void as a ‘noble guard against legislative despotism.’”
Stone said that just because last year’s U.S. Supreme Court decision overturned the nearly 50-year-old Roe ruling, it did not retroactively make the 2019 passage of Georgia’s abortion law legal.
Justices appeared to struggle with Stone’s argument.
“Your theory is that the (2019 abortion law) violated the Georgia Constitution because at the time the (abortion law) was passed, they violated the federal constitution as it was then understood,” Georgia Justice Charlie Bethel said. “But you have a (federal) judicial opinion that said ‘our previous opinions were wrong and were never the law.’”
Bethel, a former Republican state senator, was appointed to the court by Gov. Nathan Deal in 2018.
The U.S. Supreme Court’s June decision to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization paved the way for Georgia’s law to take effect.
Fulton Superior Court Judge Robert McBurney in November ordered the state to no longer enforce the 2019 law, which had been in effect in Georgia since July. The state appealed the case to the Supreme Court, which quickly ordered that the law remain in effect during the legal process.
Solicitor General Stephen Petrany, representing the state, said that it doesn’t matter whether the law was not constitutional when it passed the General Assembly in 2019, it is now in line with the law as established by the U.S. Supreme Court decision.
Petrany said that judicial decisions, “by definition, look backward and look at what already happened.” Additionally, he said, the U.S. Supreme Court said in its opinion that the decision in Roe v. Wade was always wrong.
“The entire theory of the case, in plaintiff’s perspective, is that the (state’s abortion law) was void in 2019 because of federal judicial decisions, that’s their entire theory,” he said. “And so the notion that somehow Dobbs does not undo that, it would be incoherent.”
Justice Verda Colvin said an argument has been made that the only reason the U.S. Supreme Court ruled differently in Dobbs than it did in Roe was because the makeup of the court is more conservative now than it was in the ‘70s. Gov. Brian Kemp appointed Colvin to the state Supreme Court in 2021.
“The bottom line is — even if people view it that way, that is the change in composition of the court — the holding of the Supreme Court of the land is the holding of the Supreme Court of the land,” she said.
State Sen. Ed Setzler, the Acworth Republican who sponsored the bill that became the state’s abortion law, said he is confident the court will rule in favor of the statute staying on the books.
“This was not just something that was was thrown together,” Setzler told reporters after the hearing. “This was carefully planned out, carefully thought through. And every detail of this bill was crafted in a way that was mindful of practical implementation (and to) balance the basic right to life of a child with the difficult circumstances women find themselves in.”
The law in Georgia allows abortions in cases of rape, incest, if the life of the woman is in danger or in instances of “medical futility,” when a fetus would not be able to survive. A police report is required in order to obtain a later abortion if the pregnancy is caused by rape or incest.
Georgia’s law also allows parents to claim an embryo, once a heartbeat is detected, on their state taxes as a dependent and require state officials to count an unborn child toward Georgia’s population in census counts. It also expands the definition of “natural person” to “any human being including an unborn child.”
Kwajelyn Jackson, executive director of Feminist Women’s Health Center and one of the organizations challenging the law, was emotional during a press conference after the hearing, saying that regardless of the Supreme Court’s decision, she was going to continue to work to ensure there is access to abortion in the state.
“We will continue to fight for reproductive justice at every opportunity,” she said. “We will make sure that we are protecting both the lives of people who want to continue a pregnancy to term and those who choose to terminate. ... We will make sure that the citizens of the state and this country understand that reproductive justice is the only pathway we have to freedom.”