A state court judge in Georgia proved, once again, that Obama is not the only legal nincompoop to have graduated from Harvard Law School. In this case, Judge Robert McBurney, a superior court (i.e., trial court) judge in Fulton County, ruled that a 2019 Georgia law limiting abortions after a fetal heartbeat has been detected is invalid because Roe v. Wade was in effect at the time the law was passed. I would argue that, because Hobbs holds that Roe v. Wade was wrongly decided, anything that comports with Hobbs has always been valid.

Politico has the basic facts:

A Georgia judge on Tuesday overturned a state law prohibiting most abortions after about six weeks of pregnancy, blocking it from being enforced.

[snip]

In his order, Fulton County Superior Court Judge Robert McBurney wrote that two major sections of Georgia’s 2019 abortion law were “plainly unconstitutional when drafted” and therefore void.

“At that time — the spring of 2019 — everywhere in America, including Georgia, it was unequivocally unconstitutional for governments — federal, state, or local — to ban abortions before viability … Such bans were banned,” McBurney wrote. “[The statute] did not become the law of Georgia when it was enacted and it is not the law of Georgia now.”

In other words, the judge said that because Roe v. Wade said abortion was a constitutional right, anything that was counter to that was void ab initio==that is, void from its inception.

And that would be the case if Hobbs, rather than being a Supreme Court decision, were simply a new law. That is, if an old federal law said abortion is legal everywhere, then any countervailing law passed at the time would be invalid. That invalidity would not change if a new law said abortion is to be decided on a state-by-state basis. In that case, Georgia would have to try again, making sure that its abortion law comports with the federal law.

Image: Pro-abortion protesters in Georgia. YouTube screen grab.

But the above is purely hypothetical. Here’s what really happened:

In 1973, the Supreme Court did not pass a law. Instead, it decided that, under emanations and penumbras, the Constitution created an unstated (and, as far as the Founders went, unintended) right to abortion that could not be limited.

But then, in 2022, the Supreme Court said, in effect, “We were wrong all along. At no point ever was there an unlimited right to abortion in America. At all times always, the right to abortion was a matter purely for the states.”

This means that Roe v. Wade was void ab initio. When a state, such as Georgia, enacted a law reflecting local norms, the state was comporting with the constitutional standard. The fact that it took three years after the Georgia law was passed for the Supreme Court to acknowledge its error does not change the fact that Roe v. Wade could never control state laws. State laws were always preeminent.

I sincerely hope that the Georgia Appellate Court gets this right when the matter goes before it. This is not a question of whether Georgia’s six-week law is a good thing or a bad thing. It is, instead, a very important question about state’s rights.