Sistersong v. Georgia

Plaintiffs claim that abortion ban violates the state constitution’s 1) right to liberty and privacy (as guaranteed by Article I, Section 1, Paragraph I (due process) and Paragraph XXIX (inherent rights)) and 2) guarantee of equal protection (Article I, Section 1, Paragraph 2). They also argue that the ban is void because it violated federal constitutional precedent when it was enacted, and under Georgia jurisprudence, a subsequent change in federal law cannot revive such a law. 

A trial court struck down the ban as void because it was passed at a time when it was clearly unconstitutional under the U.S. Supreme Court’s interpretation of the federal constitution, but the Georgia Supreme Court reversed that decision, ruling that Georgia’s “void ab initio” doctrine did not apply given that the U.S. Supreme Court’s latest interpretation of the federal constitution applies retroactively and thus the ban was not unconstitutional when enacted.

On remand, the trial court struck down the ban again, this time finding that it violates state constitutional rights to liberty and privacy and that an exception for “medical emergencies” that are only physical in nature, not mental health-related, violates equal protection. The state attorney general filed an appeal directly with the state high court. On October 7, 2024, the Georgia Supreme Court stayed the portion of the trial court’s decision striking the ban – effectively reinstating it –while the court decides the state’s appeal.