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June 19, 2017

The Georgia Supreme Court today rejected the State of Georgia’s argument that a state law cannot be challenged as a violation of the state constitution, even in suits against state actors as individuals.  The decision, which came in the context of a lawsuit the American Civil Liberties Union filed challenging a Georgia abortion ban, means that that challenge can move forward.

“While we disagree with today’s ruling that sovereign immunity bars suits against state officials in their official capacities, we appreciate that the Court’s decision keeps the courthouse doors open for these very important cases, including our challenge to Georgia’s unconstitutional abortion ban,” said Andrea Young, Executive Director of the ACLU of Georgia. “By providing a path for Georgians to hold their legislature accountable for unconstitutional laws, this ruling means we can now continue the legal fight against Georgia’s unconstitutional abortion ban. While the abortion ban has been in place, women in Georgia have been unable to get the health care they need. That’s why we challenged the law in the first place and why it is so important to get this case back on track quickly.”

In 2012, Georgia enacted a law banning abortions after 20 weeks. The ACLU and the ACLU of Georgia challenged the law on behalf of three obstetrician-gynecologists, on the basis that it violates their patients’ rights to due process, equal protection and privacy under the Georgia Constitution. The court blocked the law from taking effect while litigation proceeded.

However, in a separate case in 2014 the Georgia Supreme Court ruled that the state was entitled to “sovereign immunity,” a legal concept that prevents the state from being sued. After that decision, the judge presiding over the challenge to the abortion ban cited that decision and dismissed the challenge to the abortion ban. The dismissal had nothing to do with the merits of the suit’s constitutional claims. Today, the Georgia Supreme Court agreed with the trial court:  It held that sovereign immunity bars suits asking Georgia courts to strike down laws under the state constitution – if those suits are against state actors in their official capacities.

While the ACLU disagrees with the ruling on sovereign immunity, the court today also rejected the state’s assertion that such suits are also barred if they are against state actors in their individual capacities. That means both the challenge to the abortion ban and other constitutional challenges may move forward.

“We can now return to fighting Georgia’s unconstitutional abortion ban,” said Talcott Camp, Deputy Director of the ACLU Reproductive Freedom Project and lead counsel on the case.  “A woman’s health, not politics, should guide important medical decisions through her pregnancy. Our focus will now be on getting the law blocked once again so that women can get the care they need.”

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