Some Georgia Supreme Court justices appeared skeptical of the argument that the state’s six-week abortion should be tossed out because it passed while Roe v. Wade was still standing.

This story also appeared in Georgia Recorder

That’s one of the key arguments plaintiffs made when they challenged the law last year in Fulton County Superior Court, where Judge Robert C. I. McBurney called the provisions of the law “plainly unconstitutional” because they were enacted in 2019 – three years before Roe v. Wade was overturned – and temporarily blocked the law. The law is now in effect.

McBurney ruled that lawmakers should have to pass a measure in the wake of last year’s Dobbs v. Jackson Women’s Health Organization ruling.

The state appealed McBurney’s decision, which put the question before the state Supreme Court. Justices heard oral arguments Tuesday on the eve of the final day of the 2023 legislative session. The panel will issue a decision “as soon as possible,” said Chief Justice Michael P. Boggs. 

“The entire theory of the case from the plaintiff’s perspective is that the LIFE Act was void in 2019 because of federal judicial decisions,” said Stephen Petrany, solicitor general with the Georgia Attorney General’s Office. “And so the notion that somehow Dobbs does not undo that – it would be incoherent.”

The state is arguing that the 2023 ruling did not change the U.S. Constitution but rather offered a different interpretation of the text that should be applied retroactively. The U.S. Supreme Court ruling now famously called the 1973 decision “egregiously wrong from the start.”

“Dobbs expressly says the prior precedent was wrong and – whether anybody agrees with that – it says that, and it’s the last word on it,” Justice Charlie Bethel said during Tuesday’s proceeding.

Justice Sarah Warren more pointedly poked at the plaintiffs’ position.

“When you have judicial precedent that is applied retroactively, I do not think you can artificially separate them as you have tried to do here,” Warren said.

But Julia Stone, an attorney with the American Civil Liberties Union, which is representing the health care providers and abortion rights advocates challenging the law, made the case Tuesday that lawmakers knew in 2019 that the six-week ban would run afoul of Roe v. Wade, which protected access to abortion services up until the point of fetal viability. Atlanta Party for Socialism & Liberation

Passing the law anyway amounts to legislative overreach and makes the law void from the start, Stone argued.

“This is not a case where there was gray area in this in 2019. This was a case where there were 50 years of Supreme Court precedent,” Stone said.

While arguments were being heard inside, a small group of protesters sounded off their disdain for the six-week abortion ban outside the Nathan Deal Judicial Center in downtown Atlanta. They held signs bearing messages like “right to abortion is not negotiable” and chanted phrases like “my body, my choice” and “repeal the ban.”

Many of the advocates said they protest because they know firsthand the mental and physical health risks women are faced with – whether they choose to have an abortion or carry the pregnancy to full-term. 

“The power to control your own body should be something that everyone has,” said Natalie Villasana, an organizer for Atlanta Party for Socialism and Liberation. “But instead, that’s in the hands of just a few conservative politicians in Georgia, like just a few people are able to take away this fundamental right from millions of people. It’s not acceptable.” 

Post-oral argument reaction

Stone acknowledged after Tuesday’s hearing that some of the justices who asked questions appeared skeptical of the argument. But she said the public “can’t read ever too much into questions” and said she remained hopeful the panel might block the law. 

“There are 125 years of Georgia Supreme Court precedent that says you look at the constitutionality of the statute at the moment of its enactment. So when you do that here, it’s a pretty straightforward application,” she told reporters after the hearing.

But if the justices do decide to reverse McBurney’s ruling, the legal challenge will be far from resolved. For example, the plaintiffs have also argued that Georgia’s law violates the state constitution’s right to privacy. Stone said she expected more appearances before the state’s highest court as the constitutionality of Georgia’s law is tested.

McBurney held a two-day trial to hear arguments and testimony back in October and has not ruled on other parts of the case. 

“Regardless of what today does or whatever happens here, the fight isn’t over. And that’s what people need to understand that this is just one more step kind of getting ultimately to the answer and hopefully to justice for women in this state,” said former Democratic state Sen. Jen Jordan, who stepped down to run for attorney general last year and who attended Tuesday’s oral arguments.  

Georgia State University law professor Anthony Michael Kreis, who also attended Tuesday’s proceedings, predicted afterwards that the justices may side with the state on the one narrow issue before them right now. 

“I think they were struggling with this idea that the Legislature should only be doing that which they know to be lawful and not trying to kind of toy with rules on the backend, but at the same time, they should be able to adopt laws that push and test the constitutionality of doctrine as it stands. And so that’s the tension that they had to deal with today,” Kreis said.

Georgia was one of several states that passed new abortion restrictions in light of a new conservative majority on the nation’s highest court. The law also includes personhood language, such as a provision that allows an expecting parent to claim an embryo as a dependent for Georgia taxes.

But the bill’s lead sponsor, now-Sen. Ed Setzler, argues he did not see the measure as a path to overturn Roe v. Wade. Setzler, who was a state representative at the time, sat in on Tuesday’s oral arguments.

“The LIFE act wasn’t written to challenge Roe vs. Wade. The LIFE Act was written to answer Roe v. Wade,” the Acworth Republican told reporters, claiming he always believed Georgia’s law – and its focus on establishing personhood – would be found constitutional through the legal process. 

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Jill Nolin has spent nearly 15 years reporting on state and local government in four states, focusing on policy and political stories and tracking public spending. She has spent the last five years chasing...

Aaleah McConnell covers the Georgia capitol as an intern for the Georgia Recorder. She covered the Georgia General Assembly in 2022, focusing primarily on voting rights and higher education. With a background...