The fight for life in Georgia has hit another legal snag in its on-again, off-again legal efforts to defend its 2019 heartbeat abortion ban known as the Living Infants Fairness and Equality Act (Life Act). A state court trial judge just struck down major portions of the act.
And the reasons Georgia Superior Court Judge Robert C.I. McBurney gave as justification for his ruling have legal experts scratching their heads.
First, some context.
When the Georgia legislature passed the LIFE Act in 2019, it was immediately challenged in federal court as unconstitutional under federal law because of Roe v. Wade. A federal district court judge agreed and issued an injunction preventing Georgia from enforcing the law.
Georgia appealed to the 11th U.S. Circuit Court of Appeals to overturn the lower court decision. While that appeal was pending, however, the U.S. Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi 15-week abortion ban in which that state asked the high court to revisit and overturn Roe v. Wade.
Because of the Supreme Court’s decision to take up the Dobbs appeal, the 11th Circuit put the Georgia case on hold. After the high court overturned Roe in its Dobbs decision last June, a three-judge panel of 11th Circuit judges then issued a decision upholding the Georgia law.
Because of the 11th Circuit’s decision, the LIFE Act went into effect in July, saving babies in the process.
But the abortionists at Planned Parenthood and their legal advocates at the ACLU were not ready to concede defeat just because they lost at the federal level. They also sued Georgia in state court, searching for a theory that would convince a state judge to declare the LIFE Act unconstitutional under Georgia law.
And they succeeded this week with Judge McBurney’s November 15 order, which cited a Georgia court decision from 1900 ruling that a state law which the legislature did not have authority to pass at the time is void ab initio, meaning it has no legal effect from its inception.
McBurney’s reasoning boils down to an argument that since Roe was still in effect in 2019 when the legislature passed the LIFE Act, the legislature had no authority to pass the law because Roe was “the law of the land.”
“The State argues that Dobbs reflects no change in constitutional law ‘because there was never a federal constitutional right to abortion’” McBurney wrote. “Except there was. For 50 years. And we know it because the very same Supreme Court told us so. Repeatedly. Those prior pronouncements carried no lesser effect and were entitled to no less deference in Georgia or anywhere else in the Republic than that which we all must afford the Dobbs decision.”
However, legal experts were quick to point out that the judge misunderstands the legal principle that Roe was not the “law of the land” for 50 years, or ever, because Supreme Court decisions are only interpretations of the Constitution, they are not the Constitution itself.
Here’s legal expert Ed Whelan, Distinguished Senior Fellow of the Ethics and Public Policy Center, writing for National Review’s “Bench Memos”:
“The Court ruled in Dobbs that the Constitution does not confer a right to abortion and that Roe v. Wade and Planned Parenthood v. Casey were egregiously wrong in holding otherwise,” Whelan stated. “That means, as the state of Georgia correctly argued, that the Court’s authoritative position, binding on lower courts, is that there never really was a federal constitutional right to abortion. (Emphasis added).
“There were instead merely Court opinions mistakenly positing such a right. A judge who undertakes, as McBurney says he does, ‘to apply [Dobbs] faithfully and completely’ needs to grasp that.”
Professor Howard Wasserman of Florida International University School of Law, writes a similar criticism of McBurney’s logic here.
The good news is that Georgia Attorney General Chris Carr intends to file an “immediate appeal” of McBurney’s decision.
We’ll keep you updated.
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