State Court Prohibits Enforcement of Georgia's 6-Week Abortion Ban

November 30, 2022 Update:
The Georgia Supreme Court has reinstated the state's ban on abortions after roughly six weeks of pregnancy while it considers the state's appeal of a lower court ruling that voided the 2019 law known as the “Life Act”.  On November 23, 2022, the high court put Fulton County Superior Court Judge Robert McBurney's ruling overturning the ban on hold while it considers the state's appeal. As a consequence, abortions performed in Georgia in the past six weeks will again have to stop.  See, State of Georgia v. SisterSong Women of Color Reproductive Justice Collective et al., case number S23M0358.

November 16, 2022 Alert:
On November 15, 2022, a judge of the Superior Court of Fulton County, Georgia found portions of Georgia’s 6-week abortion ban unconstitutional on the date they were passed (as Roe v. Wade, 410 U.S. 113, 153 (1973) was then in effect), and therefore void from that day forward.  Accordingly, the judge entered an injunction prohibiting state and local authorities from enforcing the ban.

The “Living Infants Fairness and Equality (LIFE) Act,” was enacted on April 4, 2019, signed into law on May 7, 2019, and became effective on January 1, 2020.  The LIFE Act, a state “heartbeat bill,” prohibits abortions after an unborn child has a detectable heartbeat—generally, 6 weeks after conception.  Section 4 of the LIFE Act criminalizes abortions that occur after the 6-week period, and Section 11 of the LIFE Act requires physicians that perform those abortions to report the abortion to state authorities.  The Sistersong Women of Color Reproductive Justice Collective sued the state of Georgia seeking to prevent enforcement of these provisions of the LIFE Act, and one other provision, on due process and equal protection grounds under the Georgia state constitution. 

The Fulton County Superior Court did not reach the constitutional questions presented by Sistersong because it held Sections 4 and 11 of the LIFE Act void under the “void ab initio” doctrine.  Under the void ab initio doctrine of Georgia, laws that are unconstitutional on the date they are passed are forever void. 

Under Roe, it was unconstitutional for states to ban pre-viability abortions such as those occurring at the 6-week mark.  Because Section 4 of the LIFE Act sought to do just that, the Fulton County Superior Court found it void ab initio, and because Section 11 requires reporting of exceptions to the general rule created by Section 4, the court found Section 11 necessarily dependent on Section 4, and therefore also void ab initio.  Therefore, since Sections 4 and 11 were unconstitutional at the time they were enacted, the state court found them to be void today under Georgia’s void ab initio doctrine.  Accordingly, the court enjoined enforcement of those statutes. 

As new developments arise, we will continue to update our Dobbs Decision Resource Center. In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.