Federal court action adds uncertainty ahead of Georgia Supreme Court abortion ruling

The question they’re deciding is whether Georgia’s abortion law, H.B. 481, is unconstitutional under the state constitution because the law passed in 2019, when federal Roe v. Wade abortion protections were still in effect.

Julia Stone, a partner with the law firm Caplan Cobb represented the plaintiffs, a coalition of physicians and abortion-rights groups. In court, she argued for a state doctrine that says a law that was invalid when it was adopted cannot be enforced.

“Had the court case been brought in 2019, ” she said, “this court would have had no choice but to strike it down as void. And voidness is not something that can change over time.”

The state disagreed, arguing that since Roe is now overturned, the 2019 abortion law is valid and should continue to be enforced in the state.

“When a decision is overruled, it’s not a declaration from this court or the United States Supreme Court that the underlying Constitution has changed. It is a declaration that the court was wrong,” Solicitor General Stephen Petrany argued in court.   

Assistant Professor of Law at Emory Law School Alexander Volokh said the state’s argument is pretty strong.  

“If a law is unconstitutional, it’s not erased from the statute book. So the unconstitutionality just says it cannot be enforced. And so that’s a constraint on the law. And sometimes that constraint might be there, but if the U.S. Supreme Court changes its mind, then that constraint is lifted,” he said. “We always assume that if you pass a law in order to test a regime and then the court changed its mind and makes it legal, then you get the benefit from the law that you passed.”

Mifepristone challenges and Georgia

Mifepristone is a key drug used for medication abortion, and more than half of all abortions in the U.S. are done this way. The drug is also used for miscarriage management in combination with a second drug, misoprostol.

Over the last week, there’s been a flurry of federal court rulings. First, a Texas judge blocked the FDA approval of mifepristone, which was approved more than two decades ago. The case went to an appeals court, which said the FDA approval can’t be challenged.

The appeals court decided mifepristone could remain approved up to seven weeks of pregnancy. The medication was previously approved for up to 10-weeks gestation.

The court also ruled it cannot be sent by mail.

Now, the U.S. Justice Department is asking the U.S. Supreme Court to get involved.

 “The number and complexity of these rulings are creating a lot of confusion. We want to make sure that people know that medication abortion is safe and effective and they can still access abortion care in Georgia,” said Allison Coffman, director of Amplify GA, a statewide coalition that includes abortion-rights groups and providers.  

Since the U.S. Supreme Court knocked down Roe v. Wade last summer, Georgia clinics that provide abortion have navigated a series of state court battles and have turned away patients whose pregnancies are beyond roughly six weeks, when cardiac activity can be detected in the womb.

Coffman said that since Georgia law already restricts abortions after around six weeks, the federal court’s limit for mifepristone at seven weeks of pregnancy is unlikely to change much for access to medication abortion in Georgia for now.

But she said if the appeals court’s ruling barring the mailing of pills stands, it would be an added burden for Georgia patients seeking to end a pregnancy.

“The prohibition on the mailing of pills is concerning,” she said. “Since the FDA allowed the mailing of mifepristone, many people have relied on this service to access care. This is especially true for people who live far from clinics.”

Some state GOP lawmakers have previously tried and failed during recent General Assembly legislative sessions to ban abortion medication by mail in the state.

In response to the federal judge’s ruling halting the FDA’s approval for mifepristone, hundreds of officials from U.S. pharmaceutical companies added their names to a statement in support of the FDA’s authority to regulate medicines.

“I mean, FDA approval is what makes manufacturers comfortable manufacturing in this country, or shipping to this country,” Volokh said, “because if you’re going to be trading in unapproved drugs, then there can be very serious criminal penalties.”

 Now, Georgia opponents and supporters of abortion access await a ruling from the state Supreme Court on the six-week abortion ban, which is expected soon.

Whatever the outcome, plaintiffs in the case say they’ll continue to fight to preserve access to abortion in Georgia.