Case: Lathrop v. Deal

On November 30, 2012, the American Civil Liberties Union and the ACLU of Georgia filed this lawsuit in Georgia's Superior Court of Fulton County on behalf of three Georgia obstetrician-gynecologists. The plaintiffs sued twenty state officers in their official capacities. They challenged Georgia Bill H.B. 954, which criminalized virtually all abortions after 20 weeks of pregnancy, except for abortions in medical emergencies. Violations of the law were subject to a penalty of ten years imprisonment as well as disciplinary and licensing sanctions for providers. The plaintiffs argued that this ban would force a physician to wait for a pregnant woman's health to deteriorate until she was in a medical emergency before offering necessary care. They also argued that the ban would prevent other abortions, such as abortions that were medically necessary but non-emergency, abortions in response to emerging fetal diagnoses, or abortions undertaken in advance of inevitable miscarriage. 

The plaintiffs claimed that the law violated the Georgia Constitution's fundamental right to reproductive privacy, as established by portions of the constitution including due process, freedom of conscience, and inherent rights, by prohibiting pre-viability abortions, allowing district attorneys to access patient medical records without due process, and requiring medical providers to administer emergency pre-viability abortions using the method most likely to result in live births. They also claimed that district attorney access to medical records would violate the Georgia Constitution's right to equal protection. Additionally, the plaintiffs claimed that the law's language, like "medically futile pregnancy," was vague enough that for the state to subject plaintiffs to criminal prosecution based on the law would violate the Georgia Constitution's right to due process. The plaintiffs requested declaratory relief as well as preliminary and permanent injunctive relief plus attorneys' fees. 

On December 20, 2012, Judge Doris L. Downs granted the plaintiffs their preliminary injunction against the bill's prohibition on pre-viability abortion and against district attorneys obtaining health facility abortion records. In 2013, the State filed a first motion to dismiss the claims, which Judge Esmond Adams denied. In October 2015, the State filed a second motion to dismiss, but this time on the basis of sovereign immunity. On May 25, 2016, the Superior Court granted this second motion to dismiss.

The plaintiffs appealed to the Georgia Supreme Court on October 12, 2016, arguing that the Georgia Constitution of 1983 (including its Judicial Review Clause), the Georgia Bill of Rights, and other state documents meant sovereign immunity did not apply to constitutional claims and that sovereign immunity did not bar injunctive and declaratory relief. On June 19, 2017, the Supreme Court affirmed the lower court's dismissal, holding that sovereign immunity bars any suits against the state or its constituents to which the state has not consented, including suits for injunctive and declaratory relief from the enforcement of allegedly unconstitutional laws. The Court said that Georgia had consented to some such suits (for instance, about the Takings Clause), but had not specifically consented to this type of suit. However, the Court claimed that other remedies were available to the plaintiffs if they sued state officials solely in their individual capacities, where the State was not the real party in interest. 301 Ga. 408.

There was no subsequent lawsuit against state officials in their individual capacities regarding the twenty-week ban. This case is closed.