In Georgia v. SisterSong Women of Color Reproductive Justice Collective,[1] the Georgia Supreme Court ruled that Georgia’s law protecting unborn life if the “unborn child has . . . a detectable human heartbeat”[2] is not void ab initio.

The statute was passed by the Georgia legislature in 2019, and this challenge was brought in 2022. In November 2022, the trial court concluded that the law was “null from the beginning” under the Georgia Constitution because it did not comply with precedent that controlled at the time the statute was passed in 2019,[3] namely Roe v. Wade[4] and its progeny. The trial court made this decision despite the U.S. Supreme Court’s reversal of that precedent in Dobbs v. Jackson Women’s Health Organization in June 2022.[5] The Georgia Supreme Court reversed in a 6-1 decision and remanded the case for consideration of the plaintiffs’ other state constitutional challenges to the heartbeat law.

Georgia enacted the Living Infants Fairness and Equality Act (LIFE Act) in 2019.[6] The first provision “criminalize[s], with certain exceptions, abortion procedures ‘performed if an unborn child has been determined to have a detectable human heartbeat.’”[7] The second “require[s] a physician who performs an abortion after detecting a heartbeat to report to the Department of Public Health which exception to[the LIFE Act’s]. . . ban on abortions justified the procedure.”[8]

Following the LIFE Act’s passage, various pro-abortion organizations challenged these provisions in federal court, and the district court for the Northern District of Georgia struck them down under Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey.[9] While the appeal of that ruling was pending, the U.S. Supreme Court held in Dobbs that the “Constitution does not confer a right to abortion,” overturning Roe and Casey.[10] After Dobbs, the Eleventh Circuit vacated the federal district court’s order invalidating the LIFE Act’s heartbeat provisions.[11]

Many of the same pro-abortion groups then challenged the LIFE Act’s heartbeat provisions in state court, raising various state constitutional challenges. As relevant here, they argued that those provisions were void ab initio under the Georgia Constitution’s Judicial Review Clause[12] because they would have been invalid under U.S. Supreme Court precedent in force in 2019 when the Georgia legislature passed the LIFE Act. The trial court agreed with the plaintiffs that the heartbeat provisions were void ab initio because they prohibited pre-viability abortions in contravention of Roe and Casey, Dobbs notwithstanding. It therefore issued an order enjoining enforcement of the heartbeat provisions without reaching the other state constitutional challenges.[13]

The Georgia Supreme Court reversed. In a majority opinion written by Justice Verda M. Colvin, the court explained that the Georgia Constitution’s “void ab initio” language would have been understood at the time it was adopted “to embody the familiar doctrine of judicial review.”[14] Thus, “a statute is void if it violates . . . the Constitution that governed when the statute was enacted . . . or [a] constitutional amendment ratified after the statute's enactment date.”[15] The Judicial Review Clause does not, however, “establish that judicial decisions interpreting the Constitution somehow supply or change the meaning of the Constitution itself.”[16]

The court thus found that the trial court’s invalidation of the LIFE Act’s heartbeat provisions “rest[ed] on a faulty premise, that, in Dobbs, the United States Supreme Court changed not only its interpretation of the United States Constitution but also the meaning of the Constitution itself.”[17] But “the Court is not the source of the Constitution’s meaning. Rather, a written constitution itself has a meaning that is fixed upon ratification and cannot change absent a constitutional amendment.”[18]

Because the United States Constitution has not been amended, the court reasoned, it “means today what it meant when the LIFE Act was enacted in 2019, even if the United States Supreme Court’s interpretation of the Constitution has changed.”[19] For this reason, “a Georgia court must look to Dobbs—not Roe—in determining whether the LIFE Act was void ab initio when enacted.”[20] The trial court therefore “erred in concluding that, even though the LIFE Act complies with the United States Constitution today, the LIFE Act violated the United States Constitution when the LIFE Act was enacted.”[21]

Justice John J. Ellington dissented.[22] In his view, “a legislative act that is unconstitutional on the date it is enacted” per the then-controlling interpretation of the Constitution “is void from its inception and forever afterward.”[23] Such a statute, Justice Ellington explained, “cannot spring to life because of any subsequent change in the law, even a constitutional amendment or revision,” but instead “can be made effective only by re-enactment.”[24]

According to Justice Ellington, the LIFE Act’s heartbeat provisions were “void when passed” because they “would unduly interfere with a woman’s then-protected right under the United States Constitution to terminate a pregnancy before viability.”[25] Because this part of the statute was “moribund when enacted,” Justice Ellington concluded that “the change in doctrine subsequently wrought by the Dobbs decision cannot resuscitate it.”[26]

Finally, Justice Ellington critiqued the majority’s reliance on “the premise that the meaning of a constitutional provision is ‘fixed upon ratification’ and is ‘independent’ of judicial construction.”[27] He reasoned that this premise “allows a court’s current majority to impose its view of the meaning of a constitutional provision, as if the slate has been entirely blank.”[28] This view, he said, “undermines the stability of the law and public confidence in the impartiality of judicial review.”[29]

The majority’s decision settled the meaning of Georgia’s Judicial Review Clause. But as Justice Ellington predicted, “we can expect [Georgia’s heartbeat law] to return to th[e Georgia Supreme] Court” on the plaintiffs’ remaining state constitutional challenges.[30]

[1] Georgia v. SisterSong Women of Color Reproductive Just. Collective, 2023 WL 6976467 (Ga. Oct. 24, 2023). Presiding Justice Peterson was disqualified, and Justice Pinson did not participate.

[2] Ga. Code Ann. § 16-12-141.

[3] SisterSong, 2023 WL 6976467, at *1 (brackets omitted).

[4] 410 U.S. 113 (1973).

[5] 142 S. Ct. 2228 (2022).

[6] 2019 Ga. Laws p. 711, §§ 4, 11.

[7] SisterSong, 2023 WL 6976467, at *1 (quoting OCGA § 16-12-141(b)).

[8] Id. (citing OCGA § 31-9B-3(a)).

[9] See SisterSong Women of Color Reproductive Just. Collective v. Kemp, 472 F. Supp. 3d 1297, 1302 (N.D. Ga. 2020) (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)).

[10] SisterSong, 2023 WL 6976467, at **2 (quoting Dobbs, 142 S. Ct. at 2279).

[11] Id. at **2.

[12] Ga. Const. art. I, § II, pt. V.

[13] SisterSong, 2023 WL 6976467, at **2.

[14] Id. at **3.

[15] Id.

[16] Id. at **6.

[17] Id. at **4.

[18] Id.

[19] Id. at **5.

[20] Id. at **6.

[21] Id.

[22] Id. at **11–18.

[23] Id. at **12.

[24] Id.

[25] Id. at **13.

[26] Id.

[27] Id. at **14.

[28] Id.

[29] Id.

[30] Id. at **17.


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