Georgia Supreme Court unanimously upholds law banning abortions of pain-capable unborn children

By Dave Andrusko

Georgia Supreme Court building

Georgia Supreme Court building

In a unanimous decision handed down Monday, the Georgia Supreme Court rejected a challenge to the state’s 2012 law that bans abortions of pain-capable babies except in very limited conditions.

Justice Keith Blackwell wrote the opinion and in his opening sentence stated, “Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent.” Generally speaking sovereign immunity shields the state and state agencies from being sued in their official capacity unless the state General Assembly waives that protection.

In the single most bizarre explanation of a late-term abortion ever, the Associated Press’ Kate Brumback described House Bill 954 as a law that “bans doctors from performing abortions five months after an egg is fertilized.”

HB 954’s ban of abortions of pain-capable unborn children is far more complicated and nuanced, as the state’s highest court explained in its 71-page-long decisions. Abortions beginning at 20 weeks are permitted only if the pregnancy is “medically futile” or necessary to avert the death of the mother or “avert [a] serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”

Even in these limited circumstances, Justice Blackwell explained, “a physician must perform the abortion by means that offer ‘the best opportunity for the unborn child to survive,’ unless those means would pose an increased risk to the woman undergoing the procedure of ‘death [or]substantial and irreversible physical impairment of a major bodily function.’”

There are now sixteen states that have enacted pain-capable laws, based on model legislation provided by National Right to Life: Alabama, Arkansas, Georgia, Idaho, Kansas, Kentucky, Louisiana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin.

The ACLU challenged the law, representing three obstetricians. In December 2012, a Fulton County judge issued a preliminary injunction, putting HB 954 on hold.

“In late October [2015], however, a different Fulton County judge dismissed both the lawsuit and the injunction,” explained Bill Rankin of The Atlanta Journal-Constitution. A complicated sequence ensued. During a May 2016 hearing

Samuel, one of the obstetricians’ lawyers, told Superior Court Judge Kimberly Esmond Adams that the plaintiffs never knew the judge had sided with the state six months ago because none of the attorneys received her order. For this reason, they missed the 30-day deadline to appeal Adams’ ruling, which they would have had every intention to do, he said.

Samuel asked Adams to vacate her order and then reenter it to give the plaintiffs a chance to appeal to the Georgia Supreme Court.

The state’s solicitor general, Britt Grant, said the Attorney General’s Office would not oppose that and also expressed confidence the appeal would fail. “We think your order was correct and we expect it will be upheld,” she said to Adams.

The judge agreed, leading to the challenge that culminated Monday at the Georgia Supreme Court.

In the decision, Justice Blackwell distinguished between suing state officers in their official capacities, which the doctrine of sovereign immunity forbids, and suing state officers in their individual capacities.

Blackwell wrote of the latter in a footnote : “If, however, the sole relief sought is relief against the State officers, it is maintainable. . . . A suit may be maintained against officers or agents personally, because, while claiming to act officially, they have committed or they threaten to commit wrong or injury to the person or property of plaintiff, either without right and authority or contrary to the statute under which they purport to act.”