A Fulton County, Georgia, Superior Court judge on Tuesday ruled that key provisions of the state’s six-week abortion ban were “plainly unconstitutional” and blocked the law’s further enforcement.
In granting plaintiff abortion groups’ motion for partial judgment on the constitutionality of HB 481, Georgia’s 2019 Living Infants Fairness and Equality (“LIFE”) Act, Judge Robert McBurney had to engage in some impressive legal contortions to reach the outcome he so clearly wanted.
The case is Sistersong Women of Color Reproductive Justice Coalition v. Georgia, and with his ruling, the state’s heartbeat abortion ban—in effect since July of this year—was put on ice. But this isn’t the first time the constitutionality of Georgia’s LIFE Act has been up for consideration.
A brief review of the case history illustrates just how wrong McBurney was.
After its enactment in 2019, a group of abortion rights advocacy groups and abortionists sued to stop the LIFE Act’s enforcement, arguing, among other things, that it was an unconstitutional violation of women’s 14th Amendment substantive due process right to abortion as recognized in Roe v. Wade and Planned Parenthood v. Casey.
The abortionists won at the trial court, with the judge ruling that Roe and Casey prevented states from banning abortion before viability—considered to be around 22 to 24 weeks of pregnancy—something Georgia’s law would do.
The abortionists were granted a preliminary injunction that prevented state officials from enforcing any provision of the law. The Georgia state officials appealed.
While the case was pending on appeal before the U.S. Court of Appeals for the 11th Circuit, the Supreme Court took up Dobbs v. Jackson Women’s Health Organization. So, the 11th Circuit decided to wait to issue its ruling in the case until after the Supreme Court had issued its Dobbs ruling.
In Dobbs, the Supreme Court overruled Roe and Casey, holding that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
With Dobbs, Sistersong’s battleship was sunk. The 11th Circuit noted that “Dobbs abrogates many previous decisions of this Court” and that an “intervening decision of the Supreme Court overrules our precedents whenever the decision is clearly on point.”
How much more “on point” could a case be than Dobbs?
Based on that, the abortionists’ claim—that Georgia’s law violates women’s substantive due process right to abortion—failed. The Supreme Court held in Dobbs that there is no such right and that Roe was “egregiously wrong” to invent it.
What that means is that any state abortion restriction will pass muster if “there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” One of those interests, the court explained, is “respect for and preservation of” unborn life “at all stages of development.”
Based on that, the 11th Circuit held that Georgia’s heartbeat law was rational, and the injunction preventing its enforcement was lifted.
But the abortion rights groups in Georgia tried again—this time in state court—joining a flurry of state court litigation on laws nationwide as abortion advocates tried to secure its access coast to coast.
This time, they got the outcome they wanted, with McBurney ruling that there was “no legal basis” for Georgia to bar abortions after six weeks, and neither the state government nor local governments could enforce a ban on abortions after a heartbeat is detected.
How did McBurney reach such a head-scratching conclusion? By suspending the realities of time and space and pretending that Dobbs didn’t exist. He argued that the LIFE Act had to be considered under the legal environment that existed when it was enacted—before the ruling in Dobbs—writing:
At that time—the spring of 2019—everywhere in America, including Georgia, it was unequivocally unconstitutional for governments—federal, state, or local—to ban abortions before viability. … [T]he law did not become the law of Georgia when it was enacted, and it is not the law of Georgia now.
In Dobbs, the nation’s highest court determined that the Constitution does not confer a right to abortion, never did, and that Roe v. Wade and Planned Parenthood v. Casey were egregiously wrong in holding otherwise. That was the court’s clear, authoritative pronouncement, which binds all lower courts.
Rather than a “constitutional right” to abortion, there was nothing more than a series of bad court decisions ham-handedly pulling a “right” out of thin air by applying Roe’s flawed rationale over and over again for nearly 50 years until the Supreme Court put an end to the madness.
McBurney’s opinion was heavy on commentary. Among other doozies, he argued that Dobbs “is not somehow ‘more correct’ than” Roe or Casey, complained that Dobbs was full of “frothy language disparaging the views espoused by previous Justices,” and referred sarcastically to “the magic of Dobbs” and its lack of “some mystical higher wisdom.”
McBurney is clearly no fan of Dobbs. But for officers of the court, sworn to impartially uphold the Constitution, McBurney should know his personal preferences don’t matter. Courts are not some sort of “superlegislature.”
As Dobbs makes clear, the business of making law is strictly the purview of the legislative bodies. Courts, on the other hand, are simply bound to interpret and apply the law, whether or not they like the outcome it demands.
As for the state of Georgia, Kara Richardson, spokesperson for Georgia Attorney General Chris Carr, said the office had already taken legal action in response to McBurney’s ruling and filed an appeal with the Georgia Supreme Court.
Richardson said that state officials “will continue to fulfill our duty to defend the laws of our state in court.” Carr’s office added that the “ruling places the personal beliefs of a judge over the will of the legislature and people of Georgia.”
Dobbs drove the final nail into Roe’s coffin. A judge like McBurney who undertakes to “apply [Dobbs] faithfully and completely”—but does so contending that only post-Dobbs laws would have to abide by that precedent—might need to be reminded of that.
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