Judge Robert McBurney of the Superior Court of Fulton County said the law was void at the time it was passed in 2019 under the U.S. Supreme Court's Roe v. Wade ruling, which established a federal right to abortion in 1973.McBurney said the state would have to pass the law again now that the Supreme Court has overturned Roe for the ban to be valid. The 2019 law was "plainly unconstitutional when drafted, voted upon, and enacted," McBurney wrote in his opinion.
Now I would think this logic was correct if the reason for the change in what 'was' constitutional had been a constitutional amendment. Let us say that you passed a law that said that no one could vote until age 28, as apparently some particularly ignorant journalists think is being discussed somewhere. That's clearly unconstitutional: the Federal Constitution determines that the voting age is 18. Such a law would be unconstitutional and therefore void, and like all unconstitutional laws it would have no legitimate force from the moment it was enacted. You'd have to amend the Constitution first, and then pass the law later.
A Supreme Court ruling is not like that. The Supreme Court did not change the Constitution; it only stated that earlier courts had misunderstood it when they said it meant X, and that the correct interpretation is Y instead. The Constitution was therefore the same all the time; our judges just didn't understand it correctly for a while.
Too, the whole reason the Supreme Court was asked to rule on this was that there was a controversy about what the right meaning really was. It was not 'plain' what the constitutional stance was; lots of people disagreed, for decades, and eventually the court came to see it their way.
Thus, I think the logical position is that the constitution never barred this law, and that it is valid as enacted. Nobody changed the Constitution. The Supreme Court does not have that power.
7 comments:
Very odd claim. I suppose he must know that if the appeals could go all the way to the USSC his argument would be tossed out--but I don't know if this is one of the types of cases that can.
I think you are right on the correct way to interpret this case.
I've wondered how chronology played out in cases like your voting age example.
Another way to look at it (not saying the right way) would be that order is irrelevant. If a law raising the voting age to 28 were passed, it wouldn't go into effect because of the Constitution. However, if the Constitution were later amended in a way that allowed the law, the law would then go into effect. After all, it was duly passed and signed, and after the Constitution was amended, it became constitutional, so then it could go into effect.
I wonder if this question played out with laws passed during Prohibition.
If a law raising the voting age to 28 were passed, it wouldn't go into effect because of the Constitution. However, if the Constitution were later amended in a way that allowed the law, the law would then go into effect. After all, it was duly passed and signed, and after the Constitution was amended, it became constitutional....
I don't think this is correct. The law would already have been challenged and struck down. Amending the Constitution later wouldn't revive the law.
I think a more correct interpretation of this example is from some State anti-abortion laws that were passed pre-Roe. Some of those laws had trigger clauses that said, in essence, that the law wouldn't have effect until Roe was overruled, or at least suitably modified. Those laws are surviving court challenges (the Michigan 1831 law didn't have a trigger clause).
I don't know the details of the law in OP (e.g., whether there a trigger clause), or whether it ever was challenged (and struck) or enforced before Roe was overruled. I do think the judge's logic is flawed, as Grim pointed out. Roe judicially created a Federal level right to an abortion under certain circumstances, but it did not create a Constitutional right, for all the "discovered" shadows in the Constitution. Roe didn't even uphold any particular statute; the "right" was coalesced out of the æther by the Supreme Court. (For the Court's authority to legislate, see Art I, Sect 1; for the Court's authority to amend our Constitution, see Art V. Both of these get winked at in our courts entirely too much.)
If the law was never challenged between its enactment and Roe being overturned, I think McBurney will be overruled on appeal within the Georgia court system.
Eric Hines
The law would already have been challenged and struck down.
Well, in my hypothetical case, I was assuming it was never enforced because of the Constitutional amendment on voting age, thus it was also never challenged or struck down. So it would just be sitting there, unenforced, but waiting.
But you are right: If it had been challenged and struck down, then it would be dead regardless of amendments.
But it's just a hypothetical. I was just thinking about how we could look at it, not necessarily how we should look at it.
Thanks for bringing up the trigger clauses. That makes a lot of sense and is clearly the way to go about this. I wonder how this will play out in Georgia.
I think the decision is attempting the idea that the USSC has inserted something new into the law rather than interpreted it. If you start from the belief that the Constitution "really" protects abortion - and many do believe that - then all other interpretations must be somehow wrong. I see it as an attempt at a clever dodge, not an actual opinion. I would expect it to be readily abandoned in the face of something the judge agreed with.
I think the decision is attempting the idea that the USSC has inserted something new into the law rather than interpreted it.
Not just the law--our Constitution, also. The Supreme Court hung its Roe decision on the prior Griswold in which the Court manufactured out of nothingness and the shadow of a penumbra a right to privacy as the device for keeping government out of Americans' decisions to use birth control, or not. That "right" to privacy was used to limit government's role in personal abortion decisions.
Eric Hines
Pure silliness.
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