On Monday, the Georgia Supreme Court rejected a lawsuit challenging the state’s 20-week abortion ban for procedural reasons. That means the current lawsuit is dead—but the court left the door open for it to be refiled.
In 2012, the American Civil Liberties Union (ACLU) filed a lawsuit in state court on behalf of Eva Lathrop, an abortion provider in Georgia challenging the ban. She sought a preliminary injunction that would block enforcement of the law.
Lathrop named Georgia Gov. Nathan Deal (R), along with a handful of state actors—the head of the department of public health, the attorney general, the Fulton County district attorney, among others—in their official capacity as lawmakers and alleged that the 20-week abortion ban was a violation of the rights to equal protection, due process, and privacy in the Georgia Constitution.
The defendants moved to dismiss the case on the grounds of sovereign immunity, a judicial doctrine that bars people from suing a state or its political subdivisions, agencies, and departments without the state’s consent. While the rules of sovereign immunity vary from state to state—with some waiving sovereign immunity entirely—Georgia’s rule is rather strict. It bars lawsuits against the state and lawsuits against state actors acting on its behalf in their official capacity. But Georgia does permit lawsuits against those very same state actors in their individual capacity. These lawsuits include those for injunctive relief—which is what Lathrop was seeking when she asked the court to block the 20-week ban.
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So why did Lathrop file her lawsuit against state officials in their official capacity if Georgia law bars such suits?
Because Georgia law didn’t bar Lathrop’s suit when she filed it.
In 1995, in a case called IBM Corp. v. Evans, the Georgia Supreme Court abandoned the rule that sovereign immunity bars lawsuits against the state and its officials for injunctive relief. After acknowledging that earlier cases had routinely distinguished between suits against state actors in their official capacities (which were barred by sovereign immunity) and suits against state actors in their individual capacities (which often were not), the Georgia Supreme Court abandoned this distinction and held that a suit for injunctive relief to restrain an illegal act was exempt from Georgia’s sovereign immunity rules.
In other words, if a plaintiff was seeking an injunction to stop the state from committing an illegal act—like restricting abortion after 20 weeks—the plaintiff could pursue litigation against the state and state actors in their official capacity.
But then in 2014, the Georgia Supreme Court reversed course in Georgia Department of Natural Resources v. Center for a Sustainable Coast. In that case, the Georgia high court overruled Evans and “reaffirmed that the doctrine of sovereign immunity bars suits against the State, its departments and agencies, and its officers in their official capacities for injunctive relief.”
So in 2012, when the ACLU filed this lawsuit, Georgia’s sovereign immunity rules weren’t quite as strict as they are now thanks to the court’s 2014 decision in Sustainable Coast.
But all hope is not lost: Lathrop can proceed with her suit if she files it against the state actors in their individual capacities. The outcome for her, in this case, would be the same.
“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, in a statement.
“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,” Young continued.
It is unclear what Lathrop’s next steps will be. Perhaps her lawyers will refile the case in state court against the same officials, but in their individual capacity instead of their official capacity. That would solve their sovereign immunity problem, according to the Georgia Supreme Court.
Or, her lawyers could choose to file the lawsuit in federal court, which is what plaintiffs in the other lawsuits challenging 20-week abortion bans did, with great success. In Arizona (Isaacson v. Horne) and Idaho (McCormack v. Hiedeman), plaintiffs successfully challenged the 20-week abortion bans. The U.S. Court of Appeals for the Ninth Circuit (where Arizona and Idaho sit) ruled that U.S. Supreme Court precedent permits a woman to terminate a pregnancy at any point before viability, not just before 20 weeks’ gestational age.
The question becomes, then: Why didn’t Lathrop file her lawsuit in federal court in Georgia in the first place? She would have had no sovereign immunity problem, since in 1908, the U.S. Supreme Court in a case called Ex Parte Young said that the 11th Amendment permits lawsuits seeking prospective injunctive relief against state actors in federal court despite the state’s sovereign immunity. If Lathrop had alleged a violation of the U.S. Constitution in addition to the Georgia Constitution—which she didn’t—she could have sued state officials in federal court in their official capacity. A federal court would have had jurisdiction over both her state and federal claims, because of a civil procedure quirk that allows federal courts to have jurisdiction over state claims if they are substantially related to the federal claims.
I can only speculate, but Lathrop’s attorneys at the ACLU may have been hesitant to file in federal court out of fear of what the conservative 11th Circuit might do if the case made it to their doorstep.
The Ninth Circuit has already ruled that 20-week bans are unconstitutional. The Ninth Circuit is a reliably liberal court. The Fourth Circuit, which has also been reliably liberal—having handed down decisions like that in Gavin Grimm’s case against Gloucester County School Board, where the Court said the school board couldn’t ban Grimm from using the bathroom that aligned with his gender identity—is poised to decide whether or not North Carolina’s 20-week abortion ban is unconstitutional. Presumably, lawyers for the plaintiffs challenging North Carolina’s ban thought they had a good chance of success there. And since the ACLU is representing plaintiffs in both the North Carolina and Georgia cases, it stands to reason that they didn’t feel they’d have much luck in the more conservative 11th Circuit.
This is all speculation, of course, but considering that the law regarding sovereign immunity changed drastically between 2012, when the case was filed, and 2017, when the Georgia Supreme Court dismissed the case, I’d say it’s speculation grounded in fact.
Lathrop would not have had had any sovereign immunity problems if not for Sustainable Coast, a 2014 case that bars suit exactly like hers. So when deciding whether to file in federal court in Georgia, or in state court, Lathrop’s lawyers likely never expected the case to get dismissed on sovereign immunity grounds.
Whatever Lathrop’s attorneys choose to do now, know this: 20-week abortion bans are unconstitutional. So Lathrop should win based on current law—but, given the anti-choice push currently happening in state and federal courts around the country, it’s all up in the air.