Last week, the U.S. Supreme Court overruled the landmark decision Roe v. Wade, which guaranteed a core right for women to obtain an abortion since 1973. The decision in Dobbs v. Jackson Women’s Health Organization upheld a Mississippi law that bans abortions after 15 weeks of pregnancy.
While reversing Roe, the court adopted a new constitutional rule that is highly deferential to policies legislatures enact. Now, Georgia’s regulations of abortions, like the 2019 LIFE Act, will become largely immune from federal court intervention. That 2019 law prohibits abortions once fetal heart tones are detected, except when a physician determines that a medical emergency to the mother exists. Pregnancies resulting from rape or incest can be terminated for up to 20 weeks, but only if a victim files a police report.
Credit: contributed
Credit: contributed
But while federal courts are generally closed to reproductive health litigation, constitutional questions remain under the Georgia Constitution that state judges must decide. The Georgia Constitution protects women’s reproductive health care choices and a basic right to abortion.
Unlike the federal constitution, the Georgia Constitution begins with the Rights of Persons. The first is a substantive right to life, liberty and property protected by the due process of law. This language mirrors the United States Constitution’s Fourteenth Amendment, but the Georgia Constitution contains additional rights with more sweeping text than the U.S. Constitution. Indeed, our state constitution also safeguards equality, declaring that the laws of this state must protect people and property in an “impartial and complete” manner. And unlike the national constitution, which does not expressly require a duty to protect citizens, the Georgia Constitution instructs the General Assembly that it has a “duty” to enact laws that ensure the “full enjoyment of the rights, privileges, and immunities” of citizenship.
The textual commands of the state’s fundamental law and Georgia’s constitutional tradition are unambiguous: the government must treat citizens equally, not infringe on liberties unless for compelling reasons and affirmatively protect Georgians’ equal citizenship. Liberty, the complete protection of the law and the enjoyment of full citizenship cannot exist without personal autonomy. None of these constitutional values find refuge in a legal landscape that denies a person’s decisions about their body, health, family formation, and life – including a right to reproductive choice grounded in the right to privacy.
Georgia courts pioneered the right to privacy. In 1905, the Georgia Supreme Court recognized a broad right to privacy in Pavesich v. New England Life Insurance Co. Ours was the first state high court in the United States to recognize a substantial privacy right. The Pavesich decision stands for the proposition that liberty means more than the right to be free from unjustified physical restraint. Liberty also includes the simple desire “to be let alone,” to be free to order our lives as we choose if we pose no harm to the public, and the “right to withdraw from the public gaze.” The Georgia Supreme Court has repeatedly reaffirmed expansive constitutional protections of Georgians’ privacy that exceed federal rights.
Since the 1980s, the Georgia Constitution has been interpreted to shield a state prisoner’s refusal to eat or accept medical care. The Georgia Supreme Court ruled the state has no countervailing interest in forcing a patient to get medical treatment without which the patient will die. Georgia courts have fiercely defended the rights of parents to choose who can take care of their children. The state constitution also allows parents to make painful medical decisions without the state’s intrusion, allowing them to end life support for children without prior judicial approval. The Georgia Supreme Court was a trailblazer in gay rights, striking down the state’s anti-sodomy law five years before the Supreme Court did in Lawrence v. Texas.
There will be calls to further restrict reproductive health care in Georgia beyond the fetal personhood law adopted by the General Assembly three years ago. Any total abortion ban, limitations on emergency contraception, burdens placed on the right to travel, narrowing of exceptions, or other measures pursued by legislators elsewhere that constrain patients’ medical decisions offend the right to privacy. And while judges will be asked to rule on whether Georgia’s 6- and 20-week rules meet constitutional muster, the courts must overturn the law’s public reporting requirements for women who are victims of rape and incest. Mandating that victims of crime and abuse expose themselves to the state is an affront to their dignity and repugnant to the fundamental right Georgians have to keep out of the public eye.
A robust right to privacy has been core to our state constitutional tradition for over 115 years. It was reflected in the fact that Georgia was among the first five states to liberalize reproductive health care laws in 1968, which permitted abortions where a patient’s health was endangered, the fetus “would very likely be born with a grave, permanent, and irremediable mental or physical defect,” or if the patient was a rape victim.
The General Assembly recognized over 50 years ago (albeit in a limited way) that a complete ban on abortions unduly infringes on the need for space between the prosecutorial arm of the state and medical decision-making. This is the baseline understanding of privacy rights Georgians understood the state and federal constitutions to protect when the people ratified the state constitution in 1982. Georgians should not have fewer protections today than the law voters expected 40 years ago.
In that spirit, Georgia’s judges must continue to honor our constitutional tradition and act as a firewall against efforts to erode the right to privacy further.
Dr. Anthony Michael Kreis is a law professor at Georgia State University College of Law, specializing in constitutional law and legal history.
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