In an opinion yesterday (in Sistersong Women of Color Reproductive Justice Coalition v. Georgia), Georgia superior court judge Robert McBurney ruled that core portions of Georgia’s 2019 law barring abortion after the unborn child’s heartbeat is detectable “were plainly unconstitutional when drafted, voted upon, and enacted” and “are therefore void ab initio and of no effect.” But it is McBurney’s ruling itself that should be determined to be void and of no effect.
1. In an extraordinary footnote, McBurney writes:
The State argues that Dobbs reflects no change in constitutional law “because there was never a federal constitutional right to abortion.” (Defendant’s Response at 2; emphasis in original). Except there was. For 50 years. And we know it because the very same Supreme Court told us so. Repeatedly. Those prior pronouncements carried no lesser effect and were entitled to no less deference in Georgia or anywhere else in the Republic than that which we all must afford the Dobbs decision. Dobbs is now the law of the land; this Court and every other court in America are bound to apply it faithfully and completely. Yet Dobbs’ authority flows not from some mystical higher wisdom but instead basic math. The Dobbs majority is not somehow “more correct” than the majority that birthed Roe or Casey. Despite its frothy language disparaging the views espoused by previous Justices, the magic of Dobbs is not its special insight into historical “facts” or its monopoly on constitutional hermeneutics. It is simply numbers. More Justices today believe that the U.S. Constitution does not protect a woman’s right to choose what to do with her body than did in that same institution 50 years ago. [Underlining added.]
Let’s address the confusions in the footnote:
a. The Court ruled in Dobbs that the Constitution does not confer a right to abortion and that Roe v. Wade and Planned Parenthood v. Casey were egregiously wrong in holding otherwise. That means, as the state of Georgia correctly argued, that the Court’s authoritative position, binding on lower courts, is that there never really was a federal constitutional right to abortion. There were instead merely Court opinions mistakenly positing such a right. A judge who undertakes, as McBurney says he does, “to apply [Dobbs] faithfully and completely” needs to grasp that.
You don’t need to agree with a Court majority’s interpretation of a constitutional provision in order to recognize that the Court, in adopting that interpretation, is maintaining that the provision has always had that meaning. For example, the Court’s ruling in Obergefell v. Hodges (2015) means that, in the majority’s view, the Fourteenth Amendment has never permitted marriage to be defined only as the union of a man and a woman.
b. McBurney expressly embraces the postmodern proposition that the Constitution has no intrinsic meaning and that it instead means only whatever five justices say it means—and only until such time as five other justices say it means something else. He is essentially treating the Court as a legislative, or superlegislative, body.
That same mistaken view is embedded in McBurney’s references to Dobbs as “now the law of the land” and elsewhere to Roe and Casey as having previously been “the supreme law of this land.” Under the Supremacy Clause in Article VI of the Constitution, it is the Constitution (as well as federal laws and treaties) that “shall be the supreme Law of the Land.” The Court’s interpretations of the Constitution, while controlling lower courts, are not the Constitution itself.
It is trivially true that “basic math”—i.e., the number of justices needed to constitute a majority—was essential to the Court’s ruling in Dobbs. That simple reality has no bearing on whether the Dobbs majority is “somehow ‘more correct’ than the majority that birthed [irony alert!] Roe or Casey.” But in McBurney’s nihilistic vision, there is no such thing as right or wrong, better or worse, modes of constitutional interpretation: “It is simply numbers.”
2. McBurney’s holding rests on his application of the “void ab initio doctrine.” But his misunderstanding of the Court as a superlegislature leads him to extend that doctrine in an unprecedented and highly dubious way.
Here is McBurney’s summary of the void ab initio doctrine:
In Georgia, it is fundamental that “[l]egislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.” Ga. Const., Art. I, § II, ¶ V; see also Beall v. Beall, 8 Ga. 210, 219–20 (1850). But there is a timing element to this analysis: “The time with reference to which the constitutionality of an act of the general assembly is to be determined is the date of its passage, and, if it is unconstitutional, then it is forever void.” Jones v. McCaskill, 112 Ga. 453, 37 S.E. 724, 725 (1900) (emphasis added); see also Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613, 617 (1953) (same); Frankel v. Cone, 214 Ga. 733, 738 (1959), disapproved of on other grounds by Lott Invest. Corp. v. Gerbing, 242 Ga. 90 (1978); Strickland v. Newton Cnty., 244 Ga. 54, 55 (1979) (“The general rule is that an unconstitutional statute is wholly void and of no force and effect from the date it was enacted.”); Adams v. Adams, 249 Ga. 477, 478–79 (1982) (same). [Underlining added.]
The void ab initio doctrine, together with its “timing element,” might sound esoteric. But, properly understood, it’s commonsensical. If the legislature did not have authority to enact a law at the time that it purported to do so, it cannot retroactively compensate for the original defect.
McBurney’s ruling rests on the proposition that Georgia’s heartbeat law actually violated the federal Constitution when it was enacted in 2019. But the Court’s ruling in Dobbs means that McBurney is obligated to determine that the heartbeat law did not violate the federal Constitution when it was enacted. Rather, it instead was inconsistent only with the Court’s mistaken precedents in Roe and Casey.
To be sure, it is ultimately up to the Georgia supreme court to determine the scope and application of the void ab initio doctrine under state law. But how strange it would be for the court to extend the doctrine in a way that would allow defunct Supreme Court case law to override the state legislature.
The two cases cited by McBurney in which the Georgia supreme court found that the doctrine applies provide no support for his application. In Jones v. McCaskill, the court held that a state law enacted on December 20, 1899, that purported to create a new charter for a city violated the state constitution because it was a “special law” that conflicted with a “general law.” The legislature had attempted to remedy that conflict by amending the general law on December 21 so that the December 20 enactment would not conflict with it. In Grayson-Robinson Stores v. Oneida Ltd., the court ruled that the Georgia Fair Trade Act of 1937 violated the Supremacy Clause because it conflicted with the federal Sherman Act of 1890. Later amendments to the Sherman Act that might have allowed the Georgia law could not remedy the defect at the time of enactment.
3. On a matter as contentious as abortion, there are very few judges that will not have their own strongly held policy views. It is important that any judge ruling on an abortion matter undertake to set his views aside and to avoid any impression that he has failed to do so. That is all the more so for someone like McBurney, who evidently has family ties to one side of the abortion battle.*
McBurney badly fails on this measure. There is no reason for him to offer his view that Dobbs “is not somehow ‘more correct’ than” Roe or Casey, or to complain that Dobbs has “frothy language disparaging the views espoused by previous Justices,” or to refer sarcastically to “the magic of Dobbs” and its lack of “some mystical higher wisdom.” Nor is there any reason for him to parrot the (weird) pro-abortion talking point that Georgia’s heartbeat law operates at “a time at which many women are unaware or at best unsure if they are pregnant.”
* I have been informed that the family ties I referred to no longer exist.