As I explained in these two posts, Georgia superior court judge Robert McBurney’s ruling on Tuesday that bars state officials from enforcing core portions of Georgia’s 2019 law against post-heartbeat abortions is deeply unsound and incoherent. I’m pleased to highlight that the state of Georgia has today filed in the Georgia supreme court an emergency motion asking that the court block McBurney’s ruling pending appeal.
Here are excerpts from the excellent introduction to Georgia’s brief (underlining added; some citations omitted or cleaned up):
In a remarkable decision, the superior court below enjoined the LIFE Act’s prohibition of post-fetal-heartbeat abortions, not because there is anything wrong with the LIFE Act today, but because it was supposedly unconstitutional under Roe v. Wade (1973), when it was enacted. Relying on overruled judicial decisions to enjoin the LIFE Act is a wholly unsupported theory that has no basis in law, precedent, or common sense….
The LIFE Act is plainly valid under the federal constitution, and the superior court’s attempt to rely on Roe to nevertheless enjoin the law is fundamentally flawed. In Dobbs v. Jackson Women’s Health Org. (2022), the U.S. Supreme Court overruled the “egregiously wrong” decision of Roe v. Wade. Not surprisingly, the Eleventh Circuit then upheld the LIFE Act against a federal challenge.
If it seems odd that the superior court would nevertheless rely on the overruled Roe decision to invalidate the LIFE Act, that is because it is. No other court has ever held that an overruled judicial opinion can, like a zombie rising from the grave, invalidate otherwise perfectly valid laws. Prior judicial precedents, when they are overruled, are no law at all. When the Supreme Court overruled Roe, “the effect [was] not that the former decision was bad law, but that it was never the law.” …
The superior court’s contrary theory is unsupported and irrational. In the superior court’s view, the LIFE Act was “void ab initio”—that is, void from the beginning—because Roe had not yet been overruled when it was enacted in 2019. In the superior court’s telling, the “the proper legal milieu in which to assess the LIFE Act’s constitutionality” is the law as it existed in 2019. Because federal courts would have supposedly enjoined the LIFE Act in 2019, the superior court leapt to the conclusion that the LIFE Act was “void” all along.
None of this makes sense. Even assuming that a court should look to the state of the law in 2019, the federal constitution was the same then that it is now; it has not been amended in the interim. Dobbs makes clear, and the superior court did not dispute, that the LIFE Act is perfectly valid under the federal constitution today. So the LIFE Act must have been constitutionally valid in 2019, because the very same federal constitution applied.
To circumvent that obvious point, the superior court crafted a theory that can best be described as judicial supremacy on steroids. In the superior court’s view, when the Supreme Court overruled Roe, it was not merely interpreting the constitution, it was effectively amending the constitution. That is because, in the lower court’s view, courts not only interpret the law in individual cases, but they “define the law,” such that legislatures “are not at liberty” to disagree or “pass laws contrary to such pronouncements.” The superior court’s view is simple: judges do not interpret the law, judges are the law.
This theory, which would exalt the judiciary above its coordinate branches, conflates two separate concepts: “law” and “judicial doctrine.” The federal constitution is the relevant law. Roe and its progeny were merely the prevailing judicial doctrine at the time of the LIFE Act’s passage, and were later overruled in Dobbs. Courts have “no legitimate authority” to “amend” the constitution by “judicial opinion.” Barrow v. Raffensperger (Ga. 2020). A constitution “is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.” Olevik v. State (Ga. 2017). So while judicial doctrine changed in Dobbs, the federal constitution did not. And because no one contests that the LIFE Act is consistent with the federal constitution, it necessarily was in 2019, too….
As the superior court explains it, the federal constitution has no inherent meaning; the law is just whatever Supreme Court Justices declare it to be. But that is no truer of the federal constitution than it is of our state constitution. Assuredly, Members of this Court would be surprised to learn that they do not actually interpret the state constitution, but instead simply exercise majority power to create law. That erroneous view is the basis for the superior court’s decision to enjoin the LIFE Act, and it cannot stand.
Let’s hope that the Georgia supreme court restores some sanity.