On Tuesday, November 15, 2022, Fulton County Superior Court Judge Robert McBurney overturned Goergia’s six week abortion ban, H.B. 481, entitled the “Living Infants Fairness and Equality (LIFE) Act.” H.B. 481 bans, with some exceptions, abortion when early cardiac activity is detected – as early as six weeks into a pregnancy, when many women don’t yet know they are pregnant. Judge McBurney struck down the ban, declaring that the law was void from the start.
This ruling stems from a lawsuit brought on behalf of Sistersong Women of Color Reproductive Justice Collective on June 26. McBurney’s decision zeroed in on a theory long recognized under Georgia law called the “void ab initio” doctrine. Under this rule, which is at least 122 years old, a statute’s constitutionality must be assessed based on “the date of its passage.” If a statute was unconstitutional when signed into law, it is permanently unconstitutional and “forever void.” This principle is not just some technicality; it is so well established that the Georgia Supreme Court has created special rules for its application when the state adopts a new constitution.
The Georgia Constitution prohibits the legislature from passing laws that violate federal constitutional precedent, which the ban clearly did when enacted in 2019. The LIFE Act was passed in 2019 under Gov. Kemp, when the supreme law of the land unequivocally was — and had been for nearly half a century — that laws unduly restricting abortion before viability were unconstitutional according to McBurney’s ruling.
Quotes from our Partners
ACLU of Georgia
Staff Attorney for the American Civil Liberties Union’s Reproductive Freedom Project, Julia Kaye was quoted this week as saying, “Today’s ruling is a sigh of relief for Georgians who have suffered the severe consequences of Gov. Kemp’s ban on abortion from the earliest weeks of pregnancy, which is causing particular harm among Black and low-income communities.”
Kaye continued, “…When politicians criminalize health care, the result is that doctors across Georgia fear that providing medically appropriate care for a pregnancy complication will land them in prison. Today’s decision was a victory for justice, compassion, and medicine…”
Feminist Women’s Health Center
“Today’s ruling is an enormous victory for our patients and our state,” said Kwajelyn Jackson, executive director of Feminist Women’s Health Center. “Our mission for the last nearly 50 years has been to provide our patients with access to the full spectrum of reproductive health care, including abortion. With today’s victory under our belts, we will be able to finally resume providing this essential health care to our community.”
The Fight Continues
Although this is a victory that we are excited about in Georgia, we know that the reality is reproductive healthcare is a topic that Republicans in our state are not ready to let stand and this ruling could very well be temporary. It is unclear if legislation will rear its head in the 2023 legislative session.
It should be noted that McBurney wrote that lawmakers might pass similar legislation in light of the Dobbs ruling, but they would first have to face the “sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate whether the rights of unborn children justify such a restriction on women’s right to bodily autonomy and privacy.”
Now approaching the December 6th runoff election in Georgia, we can’t forget that this is the one issue on which Herschel Walker has been perfectly clear where he stands: he would vote for a national abortion ban with no exceptions, even in cases of rape, incest, or even to save the life of the mother.
Georgia Attorney General Chris Carr has filed an appeal of this ruling.
