For many practical purposes, we all must accept the meaning of the Constitution to be what the U.S. Supreme Court says it is. But what happens when the Supreme Court offers a new interpretation (different from past Court interpretations) about constitutional meaning, as the Court recently did regarding the existence of a constitutional right to abortion? Did the actual meaning of the Constitution change this year, or just the Court’s understanding of it?
That question is at the heart of an interesting case being litigated in Georgia, in which the validity of Georgia’s 2019 “Living Infants Fairness and Equality (LIFE) Act” is at issue. The precise question in the case, Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, arises under Georgia’s state constitution, but the Act’s validity under the Georgia constitution, challengers argue, is inextricably linked to the meaning of the U.S. Constitution at the time the Act was passed. A state trial court held that parts of the Act—most notably a prohibition on many abortions after six weeks of pregnancy—are null, void and unenforceable as a matter of state constitutional law because they violated the U.S. Constitution as interpreted by the U.S. Supreme Court in 2019, when the Georgia Legislature passed the statute. Of course, in 2022 the Supreme Court would go on to overrule the precedents (Roe and Casey) that were in effect in 2019, and hold that the U.S. Constitution does not contain any right to abortion. Why, then, did the Georgia trial judge (whose ruling is now being appealed to the Georgia Supreme Court) hold provisions of the LIFE Act unenforceable?
To answer that question we begin with a provision in the Georgia constitution that says: “[l]egislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.” (Ga. Const., Art I, § II, ⁋ V.) This provision is a straightforward and unsurprising articulation of constitutional supremacy (that is, the idea that constitutions are supreme over inconsistent statutes) and judicial review (that is, the idea that courts can and should enforce constitutional supremacy). But at what point in time is the Act’s constitutional enforceability to be judged and considered dispositive? Long ago, the Georgia Supreme Court held that “[t]he time with reference to which the constitutionality of an act of the general assembly is to be determined is the date of its passage, and, if it is unconstitutional [at that moment], then it is forever void.” (Jones v. McCaskill (1900).) Following this rule, the court in Sistersong reasoned that because the official position of a majority of the U.S. Supreme Court as of 2019 (at least for purposes of what the lower federal courts were obliged to follow) was that the U.S. Constitution does protect a right to abortion pre-viability, and because the LIFE Act violated the U.S. Constitution as so interpreted, the offending parts of the statute were void ab initio (that is, from the start) when promulgated in 2019. And, the court held, U.S. Supreme Court’s subsequent reversal of its previous interpretation of the Constitution with respect to abortion rights is irrelevant; since the offending parts of the LIFE Act were void the moment they were passed, they were a dead letter that could not be revived. According to the Sistersong court, therefore, only if the Georgia Legislature re-passed the LIFE Act or a similar statute after Dobbs could such a law come into valid effect.
Key to the Sistersong court’s reasoning is a questionable understanding of what one might call the ontological status of judicial decisions, including constitutional decisions of the U.S. Supreme Court. The State of Georgia argued that the LIFE Act was not void ab initio under the Georgia constitution “because [according to the U.S. Supreme Court in Dobbs] there was never a federal constitutional right to abortion.” But the trial judge rejected this argument, noting that the U.S. Supreme Court had held for five decades that there was such a right, and concluding that those earlier decisions “carried no lesser effect and were entitled to no less deference in Georgia or anywhere else in the Republic than that which we all must afford the Dobbs decision.” The court continued:
Dobbs is now the law of the land; and this [c]ourt and every other court in America are bound to apply it faithfully and completely. Yet Dobbs’ authority flows not from some mystical higher wisdom but instead basic math. The Dobbs majority is not somehow ‘more correct’ than the majority that birthed Roe or Casey. Despite its frothy language disparaging the views espoused by previous Justices, the magic of Dobbs is not its special insight into historical ‘facts’ or its monopoly on constitutional hermeneutics. It is simply numbers. More Justices today believe that the U.S. Constitution does not protect a woman’s right to choose what to do with her body than did in that same institution 50 years ago. This new majority has provided our nation with a revised (and controlling) interpretation of what the unchanged words of the U.S. Constitution really mean. And until that interpretation changes again, it is the law.
Thus, according to the Sistersong court, there is a constitutional right to abortion during whatever time the Supreme Court says there is one, and there is no constitutional right to abortion after the Supreme Court says there isn’t one—but, importantly, the current Court cannot retroactively affect the previous status (existence/non-existence) of a constitutional right found by a previous Court; the most it can do is change a right’s status prospectively.
Building on this analytic foundation, the court then purported to apply Georgia precedent holding that a subsequent change in one law, call it “Law A,” cannot revive another law, call it “Law B,” when Law B was void ab initio on account of its conflict with Law A (which was a higher law) at the time Law B was enacted. Importantly, though, these cases involved statutes, not constitutional provisions, and also involved changes adopted by legislative bodies to the text of the Law As in question, not judicial reinterpretations of the Law As. For example, in one prior case, a Georgia enactment was preempted (and thus unenforceable on account of the federal Supremacy Clause) by a congressional statute in effect at the time of the Georgia statute’s enactment. The Georgia Supreme Court held that a subsequent change in/repeal of the federal statute that removed the conflict between federal and state law (and thus removed the basis on which state law had been preempted) did not operate to revive the state statute, because the state law was void from the outset on account of its illegal status at the time of enactment.
Yet this aspect can easily serve to distinguish those prior Georgia cases from the question at issue in Sistersong. Why? Because it is uncontroversial to say that a legislative amendment to a statute, enacted on a particular date, cannot change the historical fact that the pre-amendment statute was the law before the amendment. For example, it would be absurd to say that repealing the statute prohibiting the use of marijuana means not only that marijuana is now legal but that it always was legal—even while the previous anti-marijuana statute was in effect.
(This is not to say that a change in current law cannot change the legal significance of events that took place in the past. It can, for example, by creating a new cause of action or extending a statute of limitations. What it cannot do is change what the law was in the past. Nor is it to say that changing circumstances cannot themselves affect the meaning and application of laws whose texts have remained unamended. Again, they can. For example, changing norms and practices may render formerly constitutionally permissible punishments now cruel and unusual and thus violative of the Eighth Amendment. Again, however, changing norms and practices today cannot affect what was considered cruel and unusual—and therefore what was constitutional—in the past.)
But judicial reinterpretations of existing law are significantly different. In Dobbs, the Supreme Court interpreted the same federal constitutional provisions that the Roe and Casey Courts interpreted, and the Court in Dobbs concluded that the Roe and Casey Courts were simply (and, on the Dobbs’ majority’s reasoning, egregiously) wrong to find a right to abortion in that Constitution. In other words, the Dobbs Court held not only that there is no constitutional right to abortion, but also that there never was a constitutional right to abortion. (Nor is it unusual for the Court to hold that its own previous decision is and always was wrong. For example, in Lawrence v. Texas, which found prohibitions on homosexual sex to be unconstitutional, the Court overruled its previous contrary holding in Bowers v. Hardwick, declaring that “Bowers was not correct when it was decided, and it is not correct today.”)
Putting aside whether the Dobbs Court was right or wrong in its understandings of the Constitution as regards a right to abortion, there is nothing absurd about the Dobbs Court’s (relatively explicit) claim that the Constitution hasn’t changed even if the Court’s interpretation of it has improved. (After all, there has been no relevant intervening amendment of the Constitution’s text that could account for the different results in Roe and Dobbs.) If the Roe Court had added two plus two and gotten five, there would be nothing amiss in the Dobbs Court doing the same sum, getting four, and declaring that the correct answer was and always had been four. (And, no, we are not suggesting that interpreting the Constitution is a similar endeavor to doing simple math, or calling balls and strikes, for that matter.)
The question before the Sistersong court was therefore more interesting than, and quite different from, the question before previous Georgia courts faced with legislative changes to enacted text rather than judicial reinterpretations of static text. Were parts of the LIFE Act void when promulgated in 2019? That depends on whether the U.S. Constitution contained a right to abortion in 2019. The Sistersong court says it did, per the U.S. Supreme Court in Roe and Casey. The Dobbs Court says it didn’t, for a variety of historical, textual, structural, and other reasons.
Although we are not experts in the Georgia constitution, and we have not fully researched the relevant case law, we can say that the Sistersong court’s approach is conceptually and structurally problematic. For starters, even when a Georgia statute is invalid because a higher-level statute (e.g., a federal law) conflicts with it at the time the Georgia law is enacted, we’re not even sure why a change in that higher law’s text shouldn’t, as a policy matter, revive the Georgia law. In other words, we’re not clear on why every Georgia statute shouldn’t be interpreted as if including the following proviso: “this statute is effective only during such time and to the extent that it does not conflict with higher law.” Such a proviso, we assume, wouldn’t be inconsistent with the wishes of the Georgia Legislature, and it would operate so as to implement as much of Georgia’s statutory law as could be implemented—a goal consistent with notions of judicial minimalism that many people embrace. If such a proviso were the presumption in interpreting Georgia statutes, then even the cases relied on by the Sistersong challengers would have been wrongly decided, since the statutes at issue would not have been unlawful when enacted on account of their self-professed intent not to apply whenever there was a conflict with a higher law. (By the way, under this approach of interpreting statutes as containing this proviso, there would still in some situations be state constitutional questions presented about whether laws that were enacted a long time ago and that have gone unenforced for a long while can always spring into effect when other aspects of the legal and political landscapes and constitutional architecture—e.g., who is permitted to vote—might have changed tremendously in the meantime. But none of those issues would be implicated by a statute enacted as recently as 2019.)
But even if there are good reasons for retaining the older Georgia cases involving changes in higher-level statutes, applying these cases to the realm of Supreme Court constitutional interpretation seems hard to justify. For one thing, the trial court’s approach reflects and expresses a starkly cynical, post-modernist understanding of Supreme Court cases that seems to reduce judging to the exercise of pure, arbitrary power, and that conflicts with the Supreme Court’s own conception of what it is doing. One need not be naïve about the imperfections of courts and the human beings who staff them to believe that some judicial decisions are better reasoned than others, some rulings correct and others incorrect. But, according to the Sistersong court’s way of thinking, it is impossible to say, for example, that Brown was correct and Plessy was wrong, or that cases applying the Bill of Rights against the states are correct and the prior inconsistent cases were wrong. All we can say is that Plessy’s holding got more votes one day, and Brown’s holding got more votes on another day. This strikes us as very misguided. (By the way, if nose tallying is the key to legitimacy of Court rulings, why wouldn’t Roe be more valid and binding than Dobbs, since Roe got seven votes and Dobbs only six? Why doesn’t the Sistersong judge claim that Roe remains the binding law of the land? That position would not be embraced, we think, by any of the nine Justices in DC.)
There is another odd implication of Sistersong’s holding and reasoning. If any Georgia statute that, when passed, conflicts with extant Supreme Court precedent is not merely subject to a state-court declaratory and injunctive relief upon enactment but void ab initio and forever more, then, as a logical matter, no party should ever be able to get the case all the way to the Supreme Court, which is limited to hearing cases in which parties have standing under Article III of the Constitution. After all, a law that is void from the outset under the state constitution cannot aggrieve anyone, and therefore cannot give rise to the injury-in-fact necessary to create federal standing.
This would mean that no new Georgia statute could ever serve as a test case with which the Supreme Court might revisit and perhaps overrule past cases creating or defining the contours of constitutional rights. And this seems somewhat problematic. Take, for example, Lochner v. New York, where the Court (quite wrongly) embraced the Fourteenth Amendment “liberty of contract” idea and in so doing prevented states from regulating sweatshop working conditions and other economic matters. Georgia could never provide the vehicle for overruling Lochner, because every time the Georgia legislature passed a law regulating the workplace in a way that sought to facilitate reconsideration of Lochner, the law could never be enforced, no one would have standing in federal court to challenge the law, and even if somehow a case were to make its way up to the U.S. Supreme Court via the state courts (who don’t need to respect Article III standing requirements and the like), the Court would decline review because an adequate and independent state-law ground—namely, the Georgia constitution’s (unusual) void ab initio doctrine—would exist to entitle the regulated entity to win in any event.
Removing Georgia from the laboratory of federalism to generate some kinds of test cases for the U.S. Supreme Court is pretty weird. Perhaps Georgia via its constitution wants to get out of the federal test-case business, but we’d want more evidence of this before we thought that was the intent of the Georgia constitution. And consider this golden-rule implication: if all the states were to adopt voidness doctrines like the one Sistersong says exists in Georgia, then it is difficult to see how any state-law test case could ever reach the Supreme Court with regard to some matters, and some Supreme Court precedents like Lochner would be totally ossified. That seems even weirder.
Interestingly, the Sistersong court apparently failed to notice this implication. It pointed out that the LIFE Act was enjoined by a federal district court in 2019—something which the Sistersong trial judge called “unsurprising” since Roe and Casey were then the law of the land. But under the judge’s own view of Georgia law, the federal district court’s ruling should have been surprising. As just pointed out, if Sistersong is right about the voidness of Georgia statutes that clearly violate Supreme Court precedent as of the time of statutory enactment, then the federal district court should have dismissed the 2019 challenge to the LIFE Act for lack of standing and ripeness rather than reaching the merits, because no one could deny that in 2019 the LIFE Act conflicted with the U.S. Supreme Court precedents on the books; its illegality (and thus utter unenforceability) under the state constitution would have been clear such that no one could reasonably worry about the Act’s provisions ever being enforced.
But, to be honest, we’re not sure the trial judge in Sistersong thought things through very carefully more generally. The opinion is interesting and in some ways sophisticated but in other ways somewhat facile. Just last week, the Georgia Supreme Court stayed the effect of the Sistersong trial-court ruling pending the higher court’s consideration of the state’s appeal. We would not be at all surprised to see the trial-court decision reversed.