I see a dark loophole in this decision which could eventually be used to reinstate the law.
Several groups – including the American Civil Liberties Union, ACLU of Georgia, the Center for Reproductive Rights, the Planned Parenthood Federation of America and the SisterSong Women of Color Reproductive Justice Collective – filed a lawsuit arguing the ban violates the right to privacy without political inference protected under the Georgia Constitution.
Fulton County Superior Court Judge Robert McBurney agreed and said it went against the law because the ban was signed before Roe was overturned.
“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,” McBurney wrote, referring to the original passage of the 6-week ban.
He says the law was unconstitutional because it was passed before Roe was overturned. But now that it has been overturned, what’s to prevent Georgia from simply passing the law again?
I wonder if (and hope that) the overwhelming sentiment that Americans as a group do not support these bans weighs against it being reinstated in some other way. Every actual vote put to the people on whether or not to ban abortion has come down pretty decisively against bans, even in blood red states. The bans that were enacted before Roe was overturned were pure theater, enacted with the expectation that they’d be declared unconstitutional, but could be pointed to as virtue signaling to the right. We tried, but the courts overruled us! Now that it’s not just a partisan performance, but real laws with real consequences for real women, one hopes that they’ll think twice. Or put it on the ballot for the people to decide.
That was a chickenshit ruling - it was in the plaintiff’s favor, but based on a technicality rather than the plaintiff’s legal argument that the law violates the state constitution’s right to privacy clause. My reasoning is:
Roe was originally based on a right to privacy implied but not explicitly stated in the constitution. Restrictive abortion laws violate this right to privacy.
Roe was overturned because the SC decided that there is no implied constitutional right to privacy. The SC did not say that abortion rights were not protected by the right to privacy, just that the right to privacy could not be inferred from the constitution.
Therefore in jurisdictions where there is a guaranteed right to privacy abortion rights should be protected.
Many states do have a right to privacy in their constitutions. Kentucky was so worried that their right to privacy clause would protect abortion rights that they tried unsuccessfully to pass an amendment carving out abortion rights from the right to privacy.
Politically I agree w you. But legally I’m not sure your reasoning follows. Specifically IMO …
Your 1 and 2 are factually and legally valid. Your 3 requires the SCOTUS thinking as dicta, in a now-invalidated case, to be applied directly to a state constitutional matter. I’m not sure as a matter of law that works.
If the GA supreme court has ruled, or will rule, that abortions are or are not covered by a general right to privacy then we’ll have an answer. But the SCOTUS reasoning (distinct from their decision), which is not binding applies to the federal constitution only.
I disagree completely with the premise of Roe v Wade that abortion is protected by privacy and I think that is why it was slowly undone and ultimately failed. I do believe that abortion is protected as an unenumerated reproductive right and so I think any attempt to use “right to privacy” in this political climate will fail and that a new approach is needed.
