Case: SisterSong Women of Color Reproductive Justice Collective v. Georgia

On July 26, 2022, SisterSong Women of Color Reproductive Collective, Feminist Women’s Health Center, Planned Parenthood Southeast, Atlanta Comprehensive Wellness Clinic, Atlanta Women’s Medical Center, Femhealth, Summit Medical Associates, Medical Students for Choice, and three physicians filed suit against the state of Georgia in the Superior Court for Fulton County (Georgia state trial court). The plaintiffs challenged the state's Six-Week Ban on abortion and the Records Access Provision enacted through H.B. 481, the “Living Infants Fairness and Equality (LIFE) Act” in 2019. The Six-Week Ban prohibited and criminalized abortion after six weeks of pregnancy, with minor exceptions. The Records Access Provision expanded upon a preexisting statutory provision that granted district attorneys virtually unfettered access to the medical files of anyone seeking an abortion, without a subpoena. Represented by the national ACLU, the ACLU of Georgia, Planned Parenthood Federation of America, the Center for Reproductive Rights, and private counsel, the plaintiffs argued that the Six-Week Ban violated the Georgia Constitution’s rights to (a) liberty and privacy guaranteed by art. I, § 1, ¶ I (due process) and ¶ XXIX (inherent rights), and (b) equal protection as guaranteed by art. I, § 1, ¶ II. They also claimed that because federal constitutional law clearly prohibited pre-viability abortion bans when the Six-Week Ban was enacted in 2019, the Act was void ab initio and unenforceable. Plaintiffs sought (1) a declaratory judgment that the LIFE Act, the Records Provision Act, and then Six-Week Ban violated the Georgia Constitution, (2) a temporary restraining order, interlocutory injunction, and permanent injunction prohibiting the state from enforcing any of the above provisions, and (3) attorneys’ costs and fees. This case was assigned to Judge Robert C. I. McBurney.

On August 15, 2022, the court dismissed the plaintiffs’ emergency motion seeking preliminary injunctive relief, filed with the complaint. The court reasoned that it lacked jurisdiction to consider the motion on its merits since one cannot sue the state unless the state has enacted a specific waiver permitting a particular claim. The court rejected the plaintiffs’ argument that, because Paragraph V of the Georgia Constitution authorizes “actions … seeking declaratory relief,” the waiver by implication encompassed all forms of relief attendant to a declaratory judgment action. Instead, the court interpreted that provision to mean that courts may not enjoin allegedly unconstitutional state action until after they award declaratory relief. As such, the Six-Week Ban on abortion and the Records Access Provision remained in place as litigation continued.

On November 15, 2022, the court granted in part the plaintiffs’ motion for partial judgment on the pleadings, holding that two sections of the LIFE Act were void ab initio and denied the state's motion to dismiss the remaining claims. The court reasoned that Georgia’s ab initio doctrine dictated that if an act was unconstitutional at the date of its passage, then it would forever be void. As such, the Six-Week Ban, specifically Sections 4 and 11 of H.B. 481, enacted at a time when it was federally unconstitutional to ban abortion, were void, permanently enjoined, and could only be law if re-enacted. Until then, the state could not enforce the parts of the LIFE Act that criminalized abortion after six weeks and required any physician performing an abortion after six weeks to report an exception to the ban. As to the remaining claims, the Court denied the state's motion to dismiss, citing the state’s strong privacy protections for medical records and finding that the plaintiffs had standing to challenge the law's curtailment of those protections.

The state appealed on November 16, 2022 to the Supreme Court of Georgia. The Supreme Court then granted an emergency stay of the injunction pending appeal, on November 23, 2022. As such, Georgia's near-total abortion ban was reinstated and enforceable as litigation continued. Oral arguments were heard before the Georgia Supreme Court on March 28, 2023.

On October 24, 2023, the Georgia Supreme Court upheld the six-week ban, concluding that it was not void ab initio. The court concluded that because the challenge was filed after Dobbs, the inquiry was not based on Roe-era precedent. The court was required to faithfully apply Dobbs, and under Dobbs, Georgia's six-week ban was consistent with the federal Constitution. This analysis was true even though the ban was passed before Dobbs was decided. The court therefore reversed the trial court's determination that the ban was void ab initio and remanded the case for further proceedings. 

On September 30, 2024, the court held that the six-week ban was unconstitutional and permanently enjoined it. Judge McBurney, writing for the majority, held that Georgia constitution’s fundamental right to privacy protects a person’s right to abortion before viability. He reasoned that the ban was not narrowly tailored and that, although the state may have a compelling interest in protecting “unborn” life, until that life can be sustained by someone other than the pregnant person, the balance of rights favors the pregnant person. In addition,Judge McBurney held that, by excluding patients with mental health emergencies from the ban’s medical emergency exception, the ban violated the state’s equal protection clause. Lastly, he found that the Records Access Provision also violated Georgians’ right to privacy.

On October 2nd, the Attorney General filed an Emergency Petition for Supersedes with the Supreme Court of Georgia, appealing the trial court’s order and asking for it to be stayed until the Supreme Court of Georgia could hear the case. 

On October 7th, the Supreme Court of Georgia granted the Attorney General's Emergency Petition, thereby lifting the lower court's injunction and allowing the six-week ban to go into effect. It did not, however, allow the Records Access Provision to go into effect.