Georgia State University legal expert weighs in on what's next for state's abortion law

Georgia’s ban on abortions after about six weeks of pregnancy has been struck down.

Fulton County Superior Court Judge Robert McBurney ruled Tuesday that since the law was passed when Roe v. Wade was the law of the land, it is void. In a statement, a spokesperson for Georgia Attorney General Chris Carr said "we have filed a notice of appeal and will continue to fulfill our duty to defend the laws of our state in court.”

GPB's Peter Biello spoke with Anthony Michael Kreis, assistant professor of law at Georgia State University College of Law, about where things stand now. 

Peter Biello: So this law was struck down in part because it was unconstitutional from the beginning, says Judge Robert McBurney, based on the fact that it was made into law during Roe v. Wade. Can you tell us about this Georgia law that this case was decided on? Is this a law that other states have on the books?

Anthony Michael Kreis: So, Article One of the Georgia state constitution has a provision that essentially says that the Georgia General Assembly can't enact laws that are unconstitutional or unlawful at the time that they are adopted. And so this is a unique provision to the Georgia state constitution, and that is why Judge McBurney said the six-week abortion ban was unconstitutional under state constitutional law, because when the General Assembly passed the law banning abortions at six weeks in 2019, that was impermissible as a matter of federal constitutional law, given the precedents of Roe v. Wade and Casey v. Planned Parenthood.

Peter Biello: So this decision puts a stop to the six-week abortion ban. But where does that leave the state of abortion now? What law is the state operating under?

Anthony Michael Kreis: So what we will do is revert back to the law as it existed prior to the Dobbs decision. The rule that had essentially governed Georgia from the federal courts was that the state could regulate abortion, but it could not ban abortion until the point of viability: the point in which a fetus could live on its own outside a mother's womb. And so that's the sense to me that the law that we will be reverting back to as it existed prior to the Dobbs decision.

Peter Biello: And what's the impact on privacy? That was a concern among some who had brought suit.

Anthony Michael Kreis: So the right to privacy was a core issue in this litigation, because Georgia has under its state constitution one of the most robust and expansive recognitions of a right to privacy in the country. And in fact, we have almost the longest standing right to privacy recognized in the United States in our in our state's constitutional law. And so there was a claim that because abortion is health care, and it's a deeply personal decision and it's a decision that intimately affects a woman and her family that this should be protected under the state constitution, the right to privacy. But Judge McBurney didn't have to reach those questions because at the end of the day, this law was not valid the second it passed. And so if the General Assembly goes back and attempts to reenact this law or a similar restrictive law on abortion, this issue might very well come back because the void ab initio question will be removed from the equation and we would have litigation that would squarely challenge the abortion law under Georgia's right to privacy.

Peter Biello: But would the other parts of the law be constitutional now that Dobbs is the law of the land?

Anthony Michael Kreis: If this law was essentially reenacted, as is, many parts of it would be valid as a matter of federal constitutional law. And therefore this question of voidness would not be at play. There are other elements of this law — namely the sharing of personal health records and the reporting requirements for victims of rape and incest — which may continue to have a privacy challenge, because they weren't necessarily unconstitutional at the time that the Georgia General Assembly adopted them. And so a lot of these questions are going to have to shake out on appeal. And it may very well become a moot case in if the General Assembly comes back and re-adopts this law. So there are a lot of moving variables and it's kind of hard to say how hard to say how this will all shake out, other than to say that this issue will continue to embroil the state of Georgia and Georgia politics for weeks and months to come. 

RELATED: A judge overturned Georgia’s strict abortion ban. What now?