UPDATED NOV. 30, 2022

On Nov. 23, the Supreme Court of Georgia reinstated the state’s ban on abortions after the detection of a fetal heartbeat. The Supreme Court of Georgia issued a one-page order granting the State of Georgia’s Emergency Petition for Supersedeas following the Superior Court of Fulton County’s ruling that Sections 4 and 11 of the Georgia LIFE Act are void ab initio.

The Supreme Court of Georgia order can be read here. More information on the Superior Court of Fulton County’s ruling can be found on the BakerHostetler Post-Roe Resource Center. BakerHostetler will continue to monitor this and other similar developments.

Georgia 6-Week Abortion Law Is Void Ab Initio

Key Takeaways

•  On Nov. 15, The Superior Court of Fulton County declared sections of Georgia’s 6-week abortion ban void and unenforceable.
• The Court held that because the ban was unconstitutional at the time it was passed in 2019, it was never valid law.
•  The state has reportedly filed a notice of appeal.

Overview

On Nov. 15, the Superior Court of Fulton County issued an order finding that two sections of the Georgia LIFE Act (the Act) – Sections 4 and 11 – were void ab initio. Section 4 of the Act criminalized abortions after the detection of a heartbeat (typically around six weeks into the pregnancy), with exceptions only for certain medical emergencies and in cases of rape or incest where a police report was filed. Section 11 required any physician who performed an abortion after detecting a fetal heartbeat to report to the Georgia Department of Public Health the exception under Section 4 of the Act that applied to justify the otherwise illegal procedure. Spokespersons for the state reported that the state has filed a notice of appeal.

Procedural History

The Act was signed in 2019 and took partial effect on Jan. 1, 2020. The Act was challenged, and parts were found unconstitutional by the District Court for the Northern District of Georgia. Following the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, the Eleventh Circuit Court of Appeals reversed the district court’s order, allowing the Act to take effect.

Superior Court Ruling

The court explained that Georgia’s void ab initio doctrine provides that “[l]egislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.” Further, “[t]he time with reference to which the constitutionality of an act of the general assembly is to be determined is the date of its passage, and, if it is unconstitutional, then it is forever void.” Therefore, since at the time of the passage of the Act, it was unequivocally unconstitutional for governments – federal, state or local – to ban abortions before viability, Section 4 of the Act was void ab initio. Since Section 11 cannot survive independent of Section 4, it too is void ab initio.

The full order can be read here. BakerHostetler will continue to monitor this and other similar developments