Where Abortion Litigation in Georgia Stands

In October, the Georgia Supreme Court handed down its first decision on the state’s abortion ban — but it will likely revisit the issue in the coming year.

The October decision kept Georgia’s six-week ban in place for now, but the state high court never addressed whether the law is in line with the state constitution’s protections of individual rights or liberties. In fact, the court did not reach any of the core civil rights challenges to the law. Rather, the question before the state high court was whether the law violated an unusual provision of the Georgia Constitution that provides: “Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.” Acts that run afoul of this provision are void ab initio — or “from the beginning.”

Abortion-rights advocates have challenged Georgia’s abortion ban on a variety of state constitutional grounds — most significantly, that the ban violates the Georgia Constitution’s due process, equal protection, and inherent rights clauses. But the ban was also challenged as violating the void ab initio provision because it was adopted in 2019, while Roe v. Wade was still the law of the land.

In its initial ruling, the trial court only addressed the ab initio claim, ruling that Georgia’s abortion ban was void because its provisions were unconstitutional under U.S. Supreme Court binding case law at the time they were passed.

In October, the Georgia Supreme Court reversed the trial court’s decision in an opinion infused with originalist-sounding rhetoric. Justice Verda Colvin’s decision began by noting that the lower court decision “rests on a faulty premise — that in Dobbs, the United State Supreme Court changed not only its interpretation of the United States Constitution but also the meaning of the Constitution itself.”

But this isn’t true, the court said. The U.S. Supreme Court “is not the source of the Constitution’s meaning” because “a written constitution itself has a meaning that is fixed upon ratification and cannot change absent a constitutional amendment.” The task of courts, therefore, is not to “supply the Constitution with a meaning the Constitution does not already have, but instead . . . to discern the meaning of the Constitution through interpretation” to resolve disputes.

While Roe was in effect in 2019, Dobbs v. Jackson Women’s Health Organization explained that “Roe was egregiously wrong from the start.” The difference in conclusion from Roe to Dobbs did not reflect any constitutional change — because courts do not change the constitution itself — and Georgia courts are obligated to follow the U.S. Supreme Court’s interpretation of the U.S. Constitution as it currently stands. Accordingly, the Georgia Supreme Court explained, “a Georgia court must look to Dobbs — not Roe — in determining whether the [ban] was void ab initio when enacted in 2019.” Under that standard, the law is clearly not void ab initio.

In a dissenting opinion, Justice John Ellington countered that the appropriate question was: “When the 2019 Act was enacted, was the Act in violation of the Constitution of the United States?” He concluded that it was. And while “Georgia courts must follow the United States Supreme Court’s most recent pronouncement on that Constitution’s meaning,” that doesn’t cure the invalidity of the ban. “[T]he Dobbs decision did not mean that Roe had been written in magical disappearing ink.” Roe “bound the states to protect women’s constitutional right to terminate a pregnancy before viability.” As such, under the Georgia Constitution, the law was “moribund when enacted” — and “the change in doctrine subsequently wrought by the Dobbs decision cannot resuscitate it.”

Georgia’s ab initio provision is quite unique — Justice Ellington observes that he “found no other state constitution” with a substantially similar provision — and the question presented by the case is unusual. On the one hand, perhaps a ruling for the challengers in this case would have extended the ab initio doctrine too far. As Professor Anthony Kreis observed, “it would not be wise in our system to say the [state legislature] can’t test federal constitutional doctrine by passing legislation officials hope or expect to serve as a vehicle to test federal constitutional rules.”

But on the other, Justice Ellington argued that declaring the ban void would not bar the legislature “from passing a law to test existing precedent” — but “Georgia’s unique ab initio doctrine” alters the process by which such a law goes into effect. In other states, if an unconstitutional statute, used as a test balloon, successfully persuades the U.S. Supreme Court to alter its interpretation of the Constitution, no further action would be required by the state legislature to effectuate the now-constitutional statute. But in Georgia, “the void-when-enacted law does not take effect after the constitutional impediment is removed; instead, the law will take effect only if and when it is re-enacted.”

But to Kreis’s point, this is not an immaterial limitation on a state legislature’s power to legislate. Constitutional challenges take years to produce decisions — the Mississippi law at issue in Dobbs was first passed in 2018, four years before the final decision in the case. In the interim, the composition of the state legislature could have significantly changed. Perhaps a new party may have a majority, or the ideology of the majority party shifted. Invalidating a now-constitutional statute because it was unconstitutional in the past — especially if it produced the constitutional change that would render it valid today — might be a bizarre outcome.

In any event, the constitutionality of Georgia’s six-week abortion ban is still very much undetermined. The Georgia Supreme Court’s decision remanded the case to the trial court to evaluate the constitutionality of the ban under the state constitution’s due process, equal protection, and inherent rights clauses. Historically, the high court has given a broad interpretation to the state constitution’s protections of individual rights and liberties. In the late 1990s and early 2000s, for example, the court repeatedly struck down state laws that regulated private, consensual sexual conduct as violations of the due process clause’s protection of the right to privacy — before the U.S. Supreme Court reached a similar conclusion in Lawrence v. Texas. These decisions, still binding precedent, will inform the litigation that takes place in the trial court. 

Regardless of the trial court’s decision, it will be appealed to the state supreme court, which will consider the question on the merits. However, the composition of the court has shifted dramatically in the last few decades — so the final outcome is far from certain.

Quinn Yeargain is an assistant professor at Widener University Commonwealth Law School.