A four-year battle over Georgia’s most recent abortion law may change how citizens challenge unconstitutional laws

A four-year battle over a little-known abortion ban raised concerns about whether the state can be sued.

Three doctors filed a lawsuit last year challenging the constitutionality of a law banning abortions after 20 weeks. The case went before the state Supreme Court on Jan. 23, but the focus of the court argument was not the abortion procedure itself, but rather “sovereign immunity”.

According to Georgia State Associate Professor of Political Science Robert M. Howard, sovereign immunity is premised on the old English principle that ‘the king can do no wrong’, which in modern times means that “a state cannot be sued without its own consent.”

Georgia Attorney General Christopher M. Carr claimed that the state’s sovereignty prevents the obstetricians from bringing the case against the state at all. Instead, the state instructed citizens to take their case to a federal court or request an exemption to the state’s sovereign immunity from Georgia legislators.

Carr declined to comment, but the Attorney General’s office told the Supreme Court, “If the public interest in avoiding occasional harsh or unfair results outweighs the public interest in sovereign immunity, the people of Georgia, through their representatives can waive [it] by legislative enactment.”

Atlanta lawyer Donald Samuel, who is representing the obstetricians with the American Civil Liberties Union (ACLU), disagreed with Carr, and said that citizens should be able to sue the state if they believe it is infringing upon their rights.

According to WABE, Samuel said, “All of the protections in the Constitution really – and I don’t mean to be overly dramatic – become meaningless if you can never go to court.”

State attorneys argue that because the state of Georgia has not given its consent to the constitutional challenge, Samuel and the obstetricians have no jurisdiction to present their case in state court.

The Georgia Supreme Court’s decision is forthcoming and will rule only on the question of whether or not the state is actually shielded from the lawsuit by sovereign immunity.

If Georgia Supreme Court justices determine that the state is not protected from the lawsuit, the case will return to Fulton County Superior Court – where it made its first appearance in 2012 – and a judge will decide whether or not the 20-week ban is constitutional.

According to Georgia State Professor of Law Eric J. Segall, Georgia’s 20-week ban is unconstitutional because it violates laws and restrictions set by prior cases.

“Under Roe v. Wade and the Casey decision, that ban is unconstitutional,” Segall said.

Roe v. Wade legalized abortion within the first trimester of pregnancy, and the ruling from Pennsylvania v. Casey established that the state cannot ban abortion until the fetus has reached the age of viability – the point at which the fetus can survive outside the womb – which is typically 24 to 28 weeks.

Howard said Georgia’s ban violates the Fourth Amendment, also referred to as the Right to Privacy doctrine, which governs the extent to which the government can intrude into an individual’s privacy, and therefore the state is not protected from the lawsuit.

“Sovereign immunity cannot prevent a state from being sued where the law is unconstitutional,” Howard said. “That would appear to violate the Supremacy Clause.”

Director of the Georgia Right to Life Pact, Genevieve Wilson, said that under Roe v. Wade, the 20-week ban is constitutional because the state has a “compelling interest to protect life”.

“Roe v. Wade said that the state did have a right to regulate facilities in the second trimester to protect the life of the woman and child,” Wilson said. “In 1973, they did not have the info that is available now. Now we know that in the second trimester, a fetus does feel pain in a more pronounced way than even we do.”

Georgia’s sovereign immunity

But regardless of constitutionality, the Georgia Supreme Court’s ruling on whether the state has sovereign immunity still must be determined first.

The ban and resulting lawsuit emerged in 2012, when Gov. Nathan Deal signed the so-called “fetal pain” law. The measure shortened the legal time limit for abortions from 24 weeks to 20, based on the medically debated claim that fetuses can feel pain 20-weeks post-fertilization. Georgia is one of 11 states that have enacted fetal pain abortion laws.

The ACLU filed a lawsuit on behalf of the three obstetricians in November that same year, asserting that the measure violates the right to privacy, rendering it unconstitutional. During the lawsuit, an injunction – a judicial order that temporarily halts an action that invades another person’s legal rights – was filed that prevented the ban from being implemented.

Three years later in October 2015, Fulton County Superior Court Judge Kimberly M. Esmond Adams dismissed the ACLU’s lawsuit on the grounds of “sovereign immunity”. As a result of  Adams’ ruling, the injunction was lifted and the 20-week ban took effect statewide, prohibiting doctors from performing abortions five months after an egg has been fertilized. The law makes an exception for a fetus unlikely to survive due to a severe defect. There are no exceptions for rape or incest.

The ACLU had 30 days after the ruling to appeal the decision, but missed the deadline due to a clerical error. The organization was unaware of the law’s implementation until a lawyer in another state noticed the mandate on Fulton County Superior Court’s website and contacted the ACLU. The state of Georgia was not legally required to notify the organization about the ruling.

According to a CNN article published in May 2016, for nearly the entire following year, almost no one knew about the Court’s decision. Neither hospitals, clinics, the public or even the Georgia Department of Health were informed that the case was dismissed and the law enacted.

Samuel argued that the abortion issue itself was important, but the question of whether or not the state is protected from the suit by its sovereignty was a pressing matter as well.

“The abortion issue itself is extremely important for the entire population as if the sovereignty issue,” Samuel told CNN.

Adams agreed with Samuel’s sentiment and, in May 2016, granted his request to reissue her previous ruling. This action allowed the ACLU another opportunity to appeal, which Samuel filed the day immediately following Adams’ reissue. He filed an injunction pending appeal which, if granted, would end the 20-week ban. If the state court does indeed turn away the case on the grounds of sovereign immunity, the next step for the ACLU and obstetricians would be to sue in Federal Court.

Georgia State College of Law professor Yvonne McDowell said that because court rulings are based on precedent, if the court determines that the state does have sovereign immunity, the state will use that argument again when faced with future lawsuits.

“Either side would use a win in this case for future arguments,” McDowell said.  “If the courts decide that the state can be sued in this instance, then other people would attempt to sue the state under similar circumstances.”