Georgia Supreme Court upholds dismissal of abortion law challenge

ATLANTA — The Georgia Supreme Court, citing the doctrine of sovereign immunity, has upheld a lower court ruling that dismissed a lawsuit brought by a trio of obstetrician-gynecologists who tried to challenge as unconstitutional a Georgia law prohibiting most abortions after 20 weeks of pregnancy.

“Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the state without its consent,” Justice Keith Blackwell wrote in the 71-page opinion.

He said the justices, who were unanimous in the decision, “recognize the availability of other means by which aggrieved citizens may obtain prospective relief from threatened enforcement of unconstitutional laws.”

According to the high court’s summary, Drs. Eva Lathrop, Carrie Cwiak and Lisa Haddad in November 2012 sued the governor and 19 other state officials in their official capacities to stop provisions of a state law that was to go into effect a few weeks later.

The law prohibits a physician from performing an abortion when the probable gestational age of the fetus is 20 weeks or more, unless the pregnancy is “medically futile” or the abortion is necessary to save the life of the woman or to avoid “serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”

When the procedure necessary, the law requires the doctor to offer “the best opportunity for the unborn child to survive.” Following the procedure, the physician is required to file a report about it with the Department of Public Health. The legislation preserves already existing law that makes hospital records of abortion procedures available to district attorneys.

Except as permitted by statutory law, the performance of an abortion is a felony in Georgia.

Lathrop and the other physicians contended that the legislative act prohibited nearly all abortions after 20 weeks of pregnancy and appeared to give “district attorneys virtually unlimited access to the medical records of all abortion patients within their jurisdictions,” in violation of their constitutional rights to privacy, equal protection and due process.

The doctors asked the Fulton County Superior Court to declare the act unconstitutional and to provide injunctive relief to prevent it from taking effect. A Fulton County judge granted pre-trial injunctive relief, barring enforcement of the provisions of the act “insofar as they prohibit pre-viability abortion care.”

A 2013 filing by the state to dismiss the physicians’ claim was denied, but in 2014 the state filed a second dismissal motion, arguing the state was shielded by sovereign immunity, a legal doctrine that protects the government, its departments and officers from being sued without their consent.

In May 2016, the Superior Court judge ruled in favor of the state, finding that sovereign immunity “bars any claims against [a defendant] in his official capacity,” and “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.”

The doctors appealed the decision to the Georgia Supreme Court.

In Monday’s opinion, the high court explained that its previous decisions on sovereign immunity applied to both injunctive and declaratory relief but had not taken up a constitutional question.

“In this case, we are confronted squarely with that question,” Monday’s opinion said. “We hold today that the doctrine of sovereign immunity extends generally to suits against the state, its departments and agencies, and its officers in their official capacities for injunctive and declaratory relief from official acts that are alleged to be unconstitutional.”

The Supreme Court attempted to clarify the way citizens may sue state officials for injunctive or declaratory relief against the enforcement of unconstitutional laws. Under the ruling, a suit against officers in their “official capacities” is a suit against the state itself, which is distinguished from a lawsuit brought against officers in their “individual capacities.”

According to the ruling, if the state is threatening to enforce a law alleged to be unconstitutional, citizens do not have the right to sue the state or the officers in their “official capacities” unless they have consent to do so, but they usually do have the right to sue the officers who are threatening to enforce the law in their “individual capacities.”

There are “prospective remedies” that the physicians “may pursue against state officers in their individual capacities,” the opinion says.

In a footnote, the justices acknowledged lawsuits against individual state officials may be less convenient than suits against the state itself, but said that inconvenience would have to be eliminated by the Legislature enacting “a statutory waiver of sovereign immunity for suits like this one.”