The Atlanta Constitution-Journal reports that the Georgia Supreme Court ruled earlier this summer that the state is immune from lawsuits challenging the constitutionality of statutes passed by Georgia’s General Assembly. The unanimous court decision struck down a challenge brought by three OB-GYN doctors against a state law prohibiting most abortions after 20 weeks of pregnancy. The supreme court upheld a prior ruling that came down last year in which a Fulton County judge dismissed the doctors’ case.


Fetal Pain Law

The United States Supreme Court (SCOTUS) upheld a woman’s right to an abortion until the point where the fetus is viable – now, considered around 24 weeks after conception – in 1973. A Georgia state law passed in 2012 states that physicians who perform post 20-week abortions can be charged with a felony and face up to 10 years in prison. The law also authorizes district attorneys to have access to patients’ medical records. Legislators claim that there is a governmental interest in protecting fetuses after the 20-week mark because they can feel pain. Physicians, on the other hand, challenged the statute – referred to as the “fetal pain” law – alleging that it violates the state’s privacy rights guaranteed under the constitution.


Supreme Court’s Decision

Georgia’s supreme court held that the state is protected from these types of lawsuits under the doctrine of sovereign immunity. Sovereign immunity traces its roots back to a centuries-old English principle that “the king can do no wrong.” The ruling bars cases against the state, its departments and agencies, and its officers in their official capacities. The decision includes requests for injunctions to stop the implementation of an unlawful statute and lawsuits that ask a Georgia judge to declare a law violates the constitution. The opinion noted, however, that relief may be obtained from threatened enforcement of unconstitutional laws if the suit is filed against government employees in their personal, not official, capacities.

The court also noted that lawmakers could waive sovereign immunity in lawsuits like the one challenging the fetal pain law. Waiver is not unheard of. Georgia lawmakers have previously enacted limited waivers of sovereign immunity. Two examples are breach-of-contract cases and tort claims filed against government agencies. The court also pointed to other available ways around sovereign immunity.


Stay Informed

Aside from the legal exercise of constitutionality, the law and the recent ruling has profound practical effects because many women have traveled to Georgia in the past years for these now-illegal abortions. For information on this law or if you have any other legal questions, contact a knowledgeable Georgia attorney today.