Reproductive Freedom

 SisterSong v. GA is a lawsuit in state court to either declare HB 481 invalid using two legal theories: One, void ab initio because the law was unconstitutional under U.S. Supreme Court precedent (Roe and Casey) when enacted; or two, unconstitutional because it violates every Georgian’s right to liberty, privacy, and equal protection as established by the Georgia Constitution.

 The lawsuit is filed on Tuesday, July 26, 2022 and is proceeding in the Superior Court of Fulton County. Judge Robert McBurney is presiding over the case. Counsel on behalf of Plaintiffs includes: ACLU of Georgia, ACLU Reproductive Freedom Project, Planned Parenthood Federation of America, Center for Reproductive Rights, Caplan Cobb, and Bondurant Mixson & Elmore.

Plaintiffs include: SisterSong Women of Color Reproductive Justice Collective, Feminist Women’s Health Center, Planned Parenthood Southeast, Atlanta Comprehensive Wellness Clinic, Atlanta Women’s Medical Center, FemHealth doing business as carafem, Summit Medical Associates, Dr. Cwiak, Dr. Haddad, Dr. Lathrop, and Medical Students for Choice.

The Defendant is the State of Georgia. The lawyers defending the State include: Christopher Carr, Attorney General; Stephen Petrany, Solicitor General; Drew Waldbeser, Deputy Solicitor General; and Hannah Basta, Assistant Attorney General.

Judge McBurney scheduled a hearing on Plaintiffs’ emergency motion for interlocutory injunction and temporary restraining order on Monday, August 8th at 4pm. The hearing focused on two threshold issues before the substantive matters could be heard: whether the State has waived sovereign immunity, and whether HB 481 was void ab initio. Judge McBurney has not yet issued a ruling from the hearing.

 1. The Six Week Ban is Void ab initio.
Void ab initio is a doctrine established in prior legal matters by the Supreme Court of Georgia. In this context, void ab initio means the law was null and void from its inception; the law never had legal authority. The doctrine can be invoked when the State enacts a law that, at the time of enactment, violates a clearly established law. Because federal constitutional law clearly prohibited pre-viability abortion bans when the Six Week Ban was enacted in 2019, the Act is void ab initio and unenforceable.

2. The Six Week Ban Violates the Georgia Constitution
The Six Week Ban, police reporting requirements for the rape/incest exceptions, exclusion of mental health from the medical emergency exceptions, and records access provision are unconstitutional under precedent of the Supreme Court of Georgia. 

Georgians have the right to liberty and privacy as guaranteed by various provisions of the Georgia Constitution, including art. I, § 1, ¶ I (due process) and ¶ XXIX (inherent rights), as well as the right to equal protection as guaranteed by art. I, § 1, ¶ II of the Georgia Constitution. Forced pregnancy, excluding acute psychiatric emergencies from medical emergency exception, requiring disclosure of rape/incest to law enforcement, and allowing district attorneys access to patient medical records without due process violate these constitutional rights.

1. Declaratory relief – a court’s judgment stating the rights of parties (ex: that the Ban is void ab initio or that the Ban and related provisions violate state constitutional rights).
2. Interlocutory injunctive relief – a court order to compel or prevent a party from doing certain acts (ex: prevent enforcement of the Six Week ban and related provisions) that is not a final judgement. a. Temporary Restraining Order (lasts 30 days). b. Preliminary Injunction (lasts the duration of the litigation).
3. Permanent injunctive relief – court order to compel or prevent a party from doing certain acts (ex: prevent enforcement of the Six Week Ban and related provisions) that is issued as a final judgment in a case.

1. On Monday, August 15, 2022, Judge McBurney issued a motion dismissing our request for preliminary injunctive relief on procedural, not substantive, grounds.
2. Judge McBurney held that the state has not waived sovereign immunity, or the privilege that the government cannot be sued without the government’s consent to be sued.