by Ross Williams, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
August 8, 2022

A Fulton County judge could soon decide whether to once again temporarily block Georgia’s six-week abortion ban, which a federal appeals court allowed to take effect last month.

“I understand that this is something that needs immediate attention, and I will give it that,” said Judge Robert C.I. McBurney following a Monday hearing in a suit filed by the American Civil Liberties Union of Georgia on behalf of health care providers and advocates.

“I need to do some thinking based on all the good arguments that have been made on both sides,” he added. “If I reach the point where I think I need more input, we’ll schedule part two of this hearing, and I trust that it will be a priority for both sides. Because it won’t be the kind of thing where I would want to hear, ‘Well, how about we get back together in three weeks?’”

Georgia’s anti-abortion law had been ruled unconstitutional in 2020, but it took effect for the first time nearly three weeks ago after the 11th Circuit Court of Appeals let it take effect immediately, citing the Supreme Court’s recent decision to overturn Roe v. Wade.

The hearing did not address the supposed harms or benefits that may be caused by the law but focused narrowly on whether the plaintiffs have the authority to sue the state, and whether the law is invalid because it violated the U.S. Constitution when Gov. Brian Kemp signed it in 2019.

The hearing, which was open to the public in-person and online, was interrupted several times by people who logged in to the Zoom call to shout expletives and insults. McBurney paused the hearing for about ten minutes while the court set up a new virtual conference. The troublemakers did not appear to be aligned with either side of the case.

State solicitor general Stephen Petrany told the judge that people aggrieved by the law can sue the state for a final decision, but if they are seeking immediate emergency relief as the ACLU is, they must file against the people threatening the supposed harm – in this case, the law enforcement departments tasked with enforcing the law.

“It would make much more sense to sue individuals that are threatening to enforce whatever the unconstitutional thing is, and enjoining them as opposed to the entire state,” Petrany said.

McBurney seemed to question that interpretation of the law, raising a hypothetical situation in which the Legislature passed a law tasking local sheriffs with destroying every odd-numbered house in the state.

“All we can do is wait until we get a declaratory judgment saying it’s unconstitutional,” he said. “In the meantime, house after house after house could be knocked down, unless you go to all 100-and-something counties and sue each sheriff, which seems less efficient.”

In her arguments on behalf of the ACLU, attorney Julia Stone said Georgia women are being harmed by the bill right now and need a way to shut it down.

“It’s not just for issues that attract media attention, it’s for all laws that are unconstitutional, and there needs to be a provision to enjoin their enforcement while the case gets decided, before final judgment,” she said.

The other big legal question revolves around the legal term void ab initio, or void from the start.

The ACLU’s attorneys argued that because the state’s anti-abortion law was unconstitutional when it was signed in 2019, it should be considered void.

“The past cannot be erased by a new judicial declaration,” said ACLU attorney Julia Kaye. “The reality is that for 50 years, there was a right to abortion up to the point of viability. That was enforced time and time again, uniformly by all of the federal courts, including the U.S. Supreme Court, which reaffirmed it repeatedly.”

Petrany characterized that as wishful thinking. He argued that the Supreme Court’s decision in Dobbs means the protections provided by Roe v. Wade were granted in error and should not be considered.

“They have not identified any court that has ever held that even though this prevailing interpretation of the time has been overruled, we’re still going to let — they refer to zombies, we’re going to let this dead case, like a zombie, rise from the grave and still take your validly passed statutes with it. They cannot point to a single time that has ever happened. And it’s because it doesn’t make any sense,” he said.

“Or has it not happened before?” McBurney asked, referencing a rejoinder filed by the plaintiffs indicating the unprecedented nature of the case. “The U.S. Supreme Court doesn’t routinely throw away 50 years of constitutional protection. They often expand it, after 50 years of saying you’ve got no rights, you do have rights. It seems exceedingly less frequent that the U.S. Supreme Court says, ‘Yeah, you’ve had these rights, now you’ve lost them, or they never existed.’”

Petrany said he objected to the judge’s framing of the decision as stripping away rights.

“To say that it’s pulling back on rights already frames the case a certain way,” he said. “On the one hand, yes, it’s saying there’s no right to abortion. And on the other hand, it’s saying there is a right for legislators to protect unborn life. So I don’t think that kind of characterization is particularly helpful.”

Georgia’s abortion law passed by one vote at a time lawmakers understood it would not immediately go into effect, but if lawmakers want to impose an abortion ban in Georgia, they should have to pass a new measure now, Kaye said.

“The legislature should now have to reenact the law, which for the first time, based on a new constitutional interpretation, for the first time has teeth,” she said. “They should have to readapt it in a contemporaneous political environment. That makes much more sense from a policy perspective than empowering the General Assembly to enact whatever kind of, at the time, blatantly unconstitutional law it wants, score the political points, and then years or maybe decades later, that law automatically springs back to life long after the legislators have left elected office.”

Speaking to reporters outside the courthouse following the hearing, representatives of the plaintiffs said they are hoping for a quick resolution.

“A six-week abortion ban means they don’t even necessarily know they’re pregnant before they cannot even get their abortion,” said Susan Lambiase, an attorney with Planned Parenthood. “And it means they either have to forcibly remain pregnant, or they have to figure out a way to get out of state to go to some state that provides more access, take time off from work and childcare, get on a plane, pay for an abortion, get a hotel and all of that. Time is of the essence. It’s really important for patients right now.”

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.