As a follow-on to my post yesterday, I offer some additional points illustrating how incoherent Georgia superior court judge Robert McBurney’s extension of the void ab initio concept is. (I’ll also note that liberal law professor Howard Wasserman has offered his own similar criticism.)
1. Under McBurney’s own summary, the void ab initio doctrine applies to an “act of the general assembly” that was unconstitutional when enacted. But rather than determining that the Georgia heartbeat act (also known as the LIFE Act) was unconstitutional in its entirety when it was enacted, McBurney makes that determination with respect to only two of its sixteen sections. Indeed, he affirmatively determines that section 10 of the law, which requires doctors to determine if the unborn child has a heartbeat, was permissible under the Roe/Casey regime.
What’s more, McBurney is plainly wrong to conclude that the two sections would have been void under the Roe/Casey regime. On the contrary, they would have permissibly applied in at least some circumstances—e.g., post-viability abortions in which the mother’s life and health were not at risk.
In short, neither the Georgia heartbeat act in its entirety nor any of its provisions was void ab initio even under McBurney’s misconception of Supreme Court rulings as legislative, or superlegislative, in nature.
2. It’s easy to show that Supreme Court rulings are not legislative in nature—that is, that they are generally* not merely prospective in effect but instead set forth the Court’s determination of what the legal provision at issue has always meant.
Assume that the Court determines in 1990 that a substantive federal criminal law enacted in 1900 is constitutionally permissible but that ten years later it reverses itself and holds that the law is unconstitutional. Anyone imprisoned under that law, whether before 1990 or in the ten years since, will be freed because the Court is saying that the law was never constitutionally permissible. It is saying that its 1990 ruling was wrong.
3. If McBurney’s position were sound, that would make it impossible for the Georgia legislature ever to tee up a direct challenge to a Supreme Court ruling. A court deciding a lawsuit against a test law that the legislature enacted would have to deem that law void ab initio, and that state-law ground of invalidation would prevent the dispute from ever reaching the Supreme Court (under the adequate-and-independent-state-ground doctrine).
It’s evident that the Georgia supreme court regards the void ab initio doctrine as a general principle of law, not as some bizarre Georgia eccentricity. But if McBurney’s conception of that doctrine were correct, the Dobbs case would never have reached the Supreme Court, as the lower courts should have ruled that Mississippi’s 15-week law was void ab initio under state law. It’s telling that no such argument was ever even made, much less accepted.
* There is a controversial exception to retroactivity for some constitutional rulings on criminal procedure.