Jurisprudence

Why a Georgia Judge Roasted Alito’s Decision Overturning Roe v. Wade

Behind the scorching rhetoric lay an important point about precedent and accountability.

Roberts and Alito in robes
Chief Justice John Roberts and Justice Samuel Alito. Alex Wong/Getty Images

On Tuesday, Georgia Superior Court Judge Robert C.I. McBurney struck down Georgia’s six-week abortion ban in a thundering decision that, at least for now, restores Georgia residents’ right to choose. McBurney’s ruling drew the most attention (and criticism) over a footnote that assailed the Supreme Court’s 5–4 reversal of Roe v. Wade as the product of “basic math” rather than “some mystical higher wisdom.” At first glance, this passage might appear to be a gratuitous potshot at the five justices who overturned Roe. But it is actually crucial to McBurney’s entire constitutional analysis—as well as his counterintuitive assertion that the state legislature may easily and lawfully reenact the exact law that he just struck down.

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Tuesday’s decision in SisterSong v. Georgia revolved around the LIFE Act, which Republican Gov. Brian Kemp signed into law in April 2019. The measure was a reaction to Justice Brett Kavanaugh’s ascendence to the Supreme Court and a test case designed to goad the new majority into overturning Roe. It prohibited abortion at about six weeks of pregnancy, meaning two weeks after the earliest point a patient might discover they’re pregnant.

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At the time, any law that banned abortion before fetal viability was flatly unconstitutional under the Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey, and a federal judge halted the law. In June 2022, of course, the Supreme Court overturned Roe and Casey in Dobbs v. Jackson Women’s Health Organization. Less than one month later, the U.S. Court of Appeals for the 11th Circuit allowed the LIFE Act to take effect.

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Because there is no longer a federal right to abortion, the plaintiffs turned to state court, arguing that the ban violates the Georgia Constitution. The plaintiffs did not, however, rest their claim on the contested theory that the state constitution protects reproductive rights. Instead, they zeroed in on a theory long recognized under Georgia law called the “void ab initio” doctrine. Under this rule, which is at least 122 years old, a statute’s constitutionality must be assessed based on “the date of its passage.” If a statute was unconstitutional when signed into law, it is permanently unconstitutional and “forever void.” This principle is not just some technicality; it is so well established that the Georgia Supreme Court has created special rules for its application when the state adopts a new constitution.

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The void ab initio doctrine has obvious application in SisterSong. As McBurney explained, “The proper legal milieu in which to assess the LIFE Act’s constitutionality is not our current post-Roe Dobbsian era but rather the legal environment that existed” when it was enacted. “At that time—the spring of 2019—everywhere in America, including Georgia, it was unequivocally unconstitutional” to outlaw pre-viability abortions. That means that the LIFE Act “did not become the law of Georgia when it was enacted and it is not the law of Georgia now.”

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In defending the ban, Georgia lawyers deployed an almost metaphysical argument to get around this problem: They argued that “there was never a federal constitutional right to abortion,” because Roe and Casey were always wrong. In their view, the LIFE Act was not void when it passed, but rather the victim of a mistaken and now-abandoned line of Supreme Court precedent—one that, according to the absurd logic of their argument, never held the true force of law.

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It was this claim that prompted McBurney to explain, in cynical and blistering terms, why Georgia’s theory is mistaken. For 50 years, he wrote, the Supreme Court recognized a right to abortion. “Those prior pronouncements 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.” But Dobbs does not retroactively revoke the force or legitimacy of the decisions it overruled. “Dobbs’ authority flows not from some mystical higher wisdom,” McBurney wrote, “but instead basic math.” He continued:

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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.

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In other words, five justices changed the controlling interpretation of the Constitution in Dobbs, but they didn’t erase the previous era of interpretation from the law books. Lower courts must apply that new meaning. But these five justices did not—and could not—go back in time to repudiate Roe and Casey when they remained binding precedent. These decisions were not void from the start, as Georgia insisted. They were the authoritative law of the land, and their reversal hasn’t changed that fact.

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Certainly, McBurney did not attempt to conceal his own contempt for Dobbs. The pointed quotation marks (“historical ‘facts’ ”) gesture toward the majority’s butchering of history. The sardonic quips indicate displeasure with Justice Samuel Alito’s strident and angry assault on women’s equality. But this rhetoric should not distract from McBurney’s fundamentally sound conclusion. Georgia wants the courts to adopt the legal fiction that Roe and Casey were never really law. Under Georgia Supreme Court precedent, courts cannot oblige. The LIFE Act was “void at birth,” so it cannot “somehow spring to life because of a change in constitutional exegesis coming from a higher court.”

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It’s tough to say whether today’s Georgia Supreme Court will affirm McBurney’s decision. The court leans right and may be inclined to avoid the thicket of abortion politics. Even if the decision stands, though, that’s not the end of the LIFE Act. The state legislature may pass a new law severely restricting abortion, reenacting the LIFE Act or even a more stringent ban. After this past midterm election, Republicans still hold a monopoly on power in the governor’s mansion and the state legislature and could likely muster the votes to pass the bill again. But the legislature must also face the consequences of its actions rather than relying on the judiciary to curtail its extremism. This time around, legislators—and their constituents—will know that whatever ban they pass will take effect.

In that sense, the void ab initio doctrine is a tool of accountability. Lawmakers cannot evade responsibility for their votes by enacting an unconstitutional law on the hunch that, at some point in the future, five justices will change the meaning of the Constitution. McBurney’s ruling is not “judicial supremacy run amok,” as Georgia lawyers complained. It is a straightforward requirement that the legislature’s acts comply with the Constitution that exists at that moment rather than the Constitution it hopes will exist in the future.

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