The June U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization overturned the nearly 50-year-old Roe v. Wade decision that guaranteed a constitutional right to abortion and cleared the way for Georgia’s law to take effect.
Attorneys from the American Civil Liberties Union, representing abortion rights advocates and providers, said the new law was illegally enacted. Attorneys argued that when the law passed in 2019, Roe v. Wade was the law of the land and the law does not allow the Legislature to enact statutes that violate the law.
“From the moment the Legislature enacted this law, it was void,” said Julia Kaye, an attorney with the ACLU Reproductive Freedom Project. “The legislature is free to re-enact it, but Dobbs does not automatically bring this law back to life like a zombie.”
McBurney asked Solicitor General Stephen Petrany, representing the state, why state lawmakers should be able to “pass any law we want because, by golly, we’re the Legislature,” even if it contradicts existing law.
“What you’re describing sounds like democracy,” Petrany said. Elected officials “can continue testing the judiciary,” he added.
Georgia’s new law is different from other states’ “heartbeat” statutes because it includes so-called personhood provisions, extending rights to an embryo once fetal cardiac activity can be detected. Parents would be able to claim a fetus, once a heartbeat is detected, on their state income taxes as a dependent, and the measure would also require state officials to count an unborn child toward Georgia’s population. Mothers can also file for child support once cardiac activity is detected.