Georgia top court bars doctors from suing state over abortion law
Georgia top court bars doctors from suing state over abortion law

The Supreme Court of Georgia [official website] issued a landmark ruling [text, PDF] Monday, holding that the state is immune from litigation unless it consents to being sued, rejecting a challenge to a 20-week abortion ban. Justice Blackwell [official profile] began the 71-page opinion by writing “Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent,” before going into a history of the doctrine that goes back to English common law, and the notion that “the King can do no wrong” [AJC report]. At issue in the case was House Bill 954 [text, PDF], the so-called “fetal pain” law, a bill that was passed in 2012 that makes most abortions illegal 20 weeks into a pregnancy. The plaintiffs are three OB-GYN physicians who claim the law violates numerous provisions of the state constitution. The court declined to consider the merits of the plaintiffs’ claims, citing sovereign immunity.

[U]nless the State has consented to this lawsuit, it is barred by the doctrine of sovereign immunity. Consent to suit can only be given by the constitution itself or by an act of the General Assembly. The parties here point to no statutory law that works a specific waiver of sovereign immunity for suits like this one, and so, the dispositive question is whether the Constitution of 1983 authorizes such a suit. The plaintiff-physicians say that it does. They are incorrect.

Access to abortion has been a recent issue since President Donald Trump vowed to appoint a Supreme Court justice who will overturn Roe v. Wade. Earlier this month the Delaware legislature approved a bill [JURIST report] that guarantees access to abortion. The same day, Texas Governor Greg Abbott signed a series of abortion regulations into law [JURIST report]. In May Trump’s administration announced [JURIST report] plans to expand the so-called Mexico City Policy blocking international family planning assistance through the US Agency for International Development to any groups or programs that provide abortion or abortion education to women. Also in May Trump signed [JURIST report] a bill into law that scales back an Obama administration regulation that protected certain federal funds for organizations that provide abortions, including Planned Parenthood [advocacy website]. In February the US House of Representatives approved a bill [JURIST report] that would overturn the Obama administration’s rule prohibiting states from denying federal funding to Planned Parenthood and passed a bill [JURIST op-ed] that makes permanent restrictions on federal funding abortion. In February the Pennsylvania Senate approved SB 3 [JURIST report], putting Pennsylvania in line to become the seventeenth state to pass a bill banning abortions past 20 weeks.