The Atlanta Gleaner.

Footnotes

1. Ga. L. 2019, p. 711, §§ 4, 11.

2. BLACK'S LAW DICTIONARY 1805 (10th ed. 2014) (defining “void ab initio”).

3. As amended, OCGA § 16-12-141 (b) reads:

   No abortion is authorized or shall be performed if an unborn child has been determined in accordance with Code Section 31-9B-2 to have a detectable human heartbeat except when:

   (1) A physician determines, in reasonable medical judgment, that a medical emergency exists;

   (2) The probable gestational age of the unborn child is 20 weeks or less and the pregnancy is the result of rape or incest in which an official police report has been filed alleging the offense of rape or incest. As used in this paragraph, the term “probable gestational age of the unborn child” has the meaning provided by Code Section 31-9B-1; or

   (3) A physician determines, in reasonable medical judgment, that the pregnancy is medically futile.

4. As amended, OCGA § 31-9B-3 (a) reads:

   Any physician who performs or attempts to perform an abortion shall report to the department, in conjunction with the reports required under Code Section 31-9A-6 and in accordance with forms and rules and regulations adopted and promulgated by the department:

   (1) If a detectable human heartbeat, as such term is defined in Code Section 1-2-1, exists, the probable gestational age, and the method and basis of the determination;

   (2) If a detectable human heartbeat, as such term is defined in Code Section 1-2-1, exists, the basis of the determination that the pregnant woman had a medically futile pregnancy, that a medical emergency existed, or that the pregnancy was the result of rape or incest; and

   (3) The method used for the abortion.

5. The trial court grounded its decision solely on its void ab initio analysis and expressly declined to reach the merits of Appellees’ claims that the LIFE Act violates the due-process, equal-protection, and inherent-rights provisions of the Georgia Constitution. Although the dissenting opinion discusses those other claims, in this opinion, we consider only matters that the trial court ruled on and that are currently before us.

6. The court's order also included other rulings not relevant to this appeal, and we do not disturb those rulings here.

7. Building Authority overruled Jones to the extent that the case could be interpreted as holding that a statute need not comply with a later-ratified Constitution so long as it complied with the Constitution in effect when the statute was enacted. See Bldg. Auth., 253 Ga. at 243 & n.1. We note that Building Authority’s statement that “[t]he constitutionality of a law is to be determined by the constitution in effect on the date the law became effective and by the constitution now in effect,” id. at 243 (emphasis supplied), should not be construed as modifying this Court's longstanding rule that the initial constitutionality of a statute must be assessed as of the statute's enactment date. See id. at 243-244 (1) (analyzing the initial constitutionality of the statute at issue as of “the time the 1980 act was passed,” not as of the date the act became effective (emphasis supplied)). See also Sherman v. Atlanta Independent School System, 293 Ga. 268, 276 (2) (c) (744 SE2d 26) (2013) (noting the general rule that “the time with reference to which the constitutionality of an act of the General Assembly is to be determined is the date of its passage” (citation and punctuation omitted; emphasis supplied)).

8. As the trial court put it, certain portions of the LIFE Act were “unequivocally unconstitutional” under the United States Constitution when enacted, even though the LIFE Act would not violate the United States Constitution if “re-enacted in our post-Roe world,” and even though the “words of the U.S. Constitution” remain “unchanged” since before Roe.

9. According to the trial court, “there was” a “federal constitutional right to abortion” “[f]or 50 years” before Dobbs “change[d] [the] constitutional law.” (Punctuation omitted.)

10. Although the meaning of a constitutional provision does not alter over time, judicial interpretations of that meaning sometimes do. This can occur because, among other things, constitutional interpretation is challenging; judges are not infallible; the judiciary may better understand the meaning of a constitutional provision over time based on additional scrutiny and analysis of its text and historical context; and the composition of a court of last resort may change, such that the balance of views on how to interpret the fixed meaning of a constitutional provision may shift. See Ammons v. State, 315 Ga. 149, 163-164 (3) (880 SE2d 544) (2022) (“Construing a constitutional provision ... requires careful attention to not only the language of the clause in question, but also its broader legal and historical context, which are the primary determinants of a text's meaning. This kind of analysis is especially difficult when the language in question was first enacted long ago and rarely interpreted since, because those important contextual clues can be more difficult to unearth, and the ordinary meaning of language can change over time.” (citation omitted)).

11. The original provision stated, “Legislative Acts in violation of the fundamental law are void; and the Judiciary shall so declare them.” Ga. Const. of 1861, Art. I, Sec. 17. The 1865 Constitution replaced “fundamental law” in this provision with “the Constitution.” Ga. Const. of 1865, Art. I, Sec. 13. The 1868 Constitution then replaced “the Constitution” with the phrase “this [C]onstitution or the Constitution of the United States.” Ga. Const. of 1868, Art. I, Sec. 32. That phrase has been carried forward to our current Constitution. See Ga. Const. of 1983, Art. I, Sec. II, Par. V.

12. Appellees also briefly argue that separation-of-powers principles under the Georgia Constitution require courts to assess the constitutionality of a statute based on the constitutional precedent that existed when a statute was enacted. The argument seems to be that the General Assembly exercises judicial power when it passes a law knowing that the law will conflict with controlling constitutional precedent. But there is no merit to this argument. Under the Georgia Constitution, passing laws is a legislative power, whereas declaring laws unconstitutional is a judicial power. Compare Ga. Const. of 1983, Art. III, Sec. VI, Par. I (“The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.”), with Ga. Const. of 1983, Art. I, Sec. II, Par. V (“Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.”). Appellees have not shown that the act of passing a law that a court later determines is unconstitutional or passing a law that conflicts with prior court precedent infringes upon the power of the judiciary to declare laws unconstitutional.

13. The 1958 act stated that “Code section 113-1002, as amended, relating to year's support is hereby amended by striking said section in its entirety and in lieu thereof inserting the following ....” Ga. L. 1958, pp. 657, 665-666, § 11.

14. On one reading of the case, Adams concluded that the Fourteenth Amendment, as interpreted by Orr, could not show that the “original” 1838 version of the year's support statute was “void from [its] inception” because “[t]he earlier year's support laws,” including the “original” 1838 version of the statute, “were enacted before the ratification of the Fourteenth Amendment.” Adams, 249 Ga. at 479 (1). On this reading, however, the phrase that Appellees rely on — “court interpretations of that period” — was irrelevant to this Court's analysis. Id. That phrase was dicta, serving only to contrast the period following the ratification of the Fourteenth Amendment, when, as Orr later indicated, there was reason to question the statute's constitutionality, with the period preceding the Fourteenth Amendment's ratification, when there was no basis for questioning the constitutionality of the year's support statute.

    On another reading of Adams, this Court concluded that the “original” 1958 year's support statute, which “superseded” prior versions of the statute, violated the Fourteenth Amendment. Adams, 249 Ga. at 478-479 (1). But we nevertheless held that an exception applied to “[t]he general rule that an unconstitutional statute is wholly void and of no force and effect from the date it was enacted” because, if we were to declare the statute unconstitutional, “unjust results would accrue to those who justifiably relied on it.” Id. (citation and punctuation omitted). See James B. Beam Distilling Co. v. State, 259 Ga. 363, 366 (3) (382 SE2d 95) (1989) (noting that Adams had described an “exception” to the general “rule of voidness ab initio,” which applied “where, because of the nature of the statute and its previous applications, unjust results would accrue to those who justifiably relied on it”; describing Adams as a case in which this Court “applied its decision prospectively rather than retroactively”; and holding that “the exception to the general rule” applied in the instant case because “it would be unjust to declare the statute void ab initio” (citation and punctuation omitted)), rev'd, 501 U.S. 529 (111 SCt 2439, 115 LE2d 481) (1991). On this reading, Adams concluded that reliance on a pre-Orr understanding of the year's support statute's constitutionality was justifiable in part because there were no “court interpretations” before Orr that called into question the statute's constitutionality. Adams, 249 Ga. at 479 (1). But this interpretation does not help Appellees, who do not ask us to apply the type of exception to the void ab initio rule Adams described and instead ask us to apply the general rule that a statute is forever void if it was unconstitutional when enacted.

    Because there is no plausible interpretation of Adams that supports Appellees’ position on appeal, we need not definitively decide how the case should be interpreted. Nevertheless, we note that, to the extent that the first interpretation of Adams is accurate and this Court treated the 1979 year's support statute as belonging to an unbroken lineage of “earlier,” “similar acts,” stretching back to the “original” 1838 version of the statute, Adams, 249 Ga. at 479 (1), it appears that Adams may not have given due weight to the fact that, in 1958, a code section “relating to year's support” was “amended by striking said section in its entirety” and replacing it with a new section. Ga. L. 1958, pp. 657, 665-666, § 11.

15. Appellees also cite James B. Beam, which quoted the language from Adams discussed above. See James B. Beam, 259 Ga. at 366 (3). However, assuming without deciding that some part of this Court's ruling in James B. Beam survived the United States Supreme Court's reversal of that opinion, the case does not support Appellees’ position. This is because James B. Beam affirmed the trial court's decision that the statute in that case “was unconstitutional” when enacted, even though it would have been deemed constitutional under court interpretations from the enactment period and had in fact survived an earlier constitutional challenge. See id. at 364, 366 (1), (3). Further, this Court did not hold that the statute was void ab initio but rather that an exception applied to the general rule that an unconstitutional statute should be “declared” void ab initio because, under the particular facts of the case, such a declaration would cause “unjust results [to] accrue to those who justifiably relied on” the statute. Id. at 366 (3) (citation and punctuation omitted). That exception is irrelevant here, as Appellees do not seek to avail themselves of an exception to the general rule that a statute is void ab initio if it was unconstitutional when enacted.

16. According to the dissenting opinion, this “doctrine” is “founded in the text of [the Georgia] Constitution,” which requires “the General Assembly ... [to] follow [the United States Supreme] Court's most recent pronouncement on the United States Constitution's meaning.” Dissent Op. at 11-12 n.13, 16-17. But the dissenting opinion does not cite any provision of the Georgia Constitution requiring the General Assembly to exercise its legislative power within the confines of then-binding constitutional precedent, as opposed to within the bounds of the Constitution itself. See Dissent Op. at 5-7. And the only authority on which the dissenting opinion relies to establish the existence of a Georgia-law doctrine requiring courts to apply since-overruled constitutional precedent addresses the canon of statutory construction providing that, when interpreting a statute's “meaning and effect,” we generally construe the statute “in connection and in harmony with the existing law,” including “decisions of the courts.” Dissent Op. at 8-9 & n.11 (quoting Plantation Pipe Line, 227 Ga. at 9 (3)). As explained above in subdivision 2 (d) (ii), however, that canon of construction does not apply here; and it does not require Georgia courts to apply overruled United States Supreme Court cases interpreting the United States Constitution when determining whether a statute violates the Constitution.

17. See Ga. Const. of 1861, Art. I, Sec. 17 (“Legislative Acts in violation of the fundamental law are void; and the Judiciary shall so declare them.”); see also Ga. Const. of 1861, Art. I, Sec. 1 (fundamental principles of free government), Sec. 2 (consent of the governed). Before the express inclusion of judicial review as a constitutional imperative, the superior courts, and this Court, beginning in its first term, recognized the necessity of judicial review. See Beall v. Beall, 8 Ga. 210, 217 (1850) (“[I]f [a challenged] Act is a plain and palpable violation of the Constitution [of Georgia], this Court has the power, and it becomes its imperative duty, to declare it so.”); Nunn v. State, 1 Ga. 243, 245-246 (1846) (“It is always with unfeigned reluctance that we approach a question involving the constitutionality of a state law. It is made our duty, however, in the present case, and we should be unworthy of the exalted station we occupy, if we were to shrink from its performance. ... It ought seldom or ever to be decided, in a doubtful case, that a law is void for its repugnance to the Constitution. And it is not on slight implications and vague conjectures that the Legislature is to be pronounced to have transcended its powers. On the contrary, the opposition between the law and the Constitution should be such, that the judges feel a clear and strong conviction of their incompatibility with each other. The presumption is in favor of every legislative act, and the whole burden of proof lies on him who denies its constitutionality.”); Albert Berry Saye, A Constitutional History of Georgia 1732-1945, pp. 188-195 (1948).

18. It is important throughout a discussion of the doctrine of void ab initio to distinguish between a “legislative act” and a statute, which the trial court was careful to do in this case. To put it simply, the General Assembly carries out its legislative function by introducing and voting on bills. Each bill includes a summary of the purpose of the act and may include legislative findings. A bill becomes “an act” when it becomes effective, typically upon approval by the governor. The General Assembly's acts are numbered and published in their entirety in the Georgia Laws series. Not all acts create, amend, or repeal statutes; for example, budget appropriations acts do not create, amend, or repeal any statute. Statutes that are created or amended by Acts of the General Assembly are compiled in the Code of Georgia, which is updated annually after the end of a legislative session. The summary of the purpose of an act is not published in the Code. Legislative findings included in an act are published in the Code only if so designated by the General Assembly in the act. The 2019 Act at issue in this case, Act No. 234 (HB 481), for example, comprised 16 sections, included legislative findings that were not published in the Code, amended eight Code sections, distributed among Titles 1, 16, 19, 31, and 48, entirely repealed one Code section in Title 31, provided for citizen standing in litigation challenging any of the Act's provisions, and made the provisions severable. The trial court in this case declared Sections 4 and 11 of the 2019 Act void ab initio.

19. See Ga. Const. of 1865, Art. I, Sec. 13 (“Legislative Acts in violation of the Constitution are void, and the Judiciary shall so declare them.”).

20. See Ga. Const. of 1868, Art. II, Sec. XXXII (“Legislative acts in violation of this Constitution, or the Constitution of the United States, are void, and the Judiciary shall so declare them.”); Ga. Const. of 1877, Art. I, Sec. IV, Par. II (same); Ga. Const. of 1945, Art. I, Sec. IV, Par. II (same); Ga. Const. of 1976, Art. I, Sec. II, Par. II (same); Ga. Const. of 1983, Art. I, Sec. II, Par. V (“Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.”).

21. I have found no other state constitution that provides a judicial-duty provision similar to Georgia's provision that “the judiciary shall ... declare” unconstitutional laws “void,” and only three other states’ constitutions that even declare that unconstitutional laws are void. See Iowa Const. Art. 12, § 1 (“This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void. The general assembly shall pass all laws necessary to carry this constitution into effect.”); Kentucky Const. Bill of Rights § 26 (“To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.”); Rhode Island Const. Art. 6, § 1 (“This Constitution shall be the supreme law of the state, and any law inconsistent therewith shall be void. The general assembly shall pass all laws necessary to carry this Constitution into effect.”).

22. In Herrington v. State, 103 Ga. 318, 319-320 (29 SE 931) (1898), this Court relied on “exhaustive opinion” from the United States Supreme Court in Norton v. Shelby Co., 118 U.S. 425, 426 (6 SCt 1121) (1886), concluding that “[a]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”). See also Commrs. of Roads & Revenues of Fulton County v. Davis, 213 Ga. 792, 793 (102 SE2d 180) (1958) (“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.” (citations and punctuation omitted)).

23. Ga. Const. of 1777, Preamble.

24. See Ga. Const. of 1798, Art. I, Par. XXII (“The General Assembly shall have power to make all laws and ordinances, which they shall deem necessary and proper for the good of the state, which shall not be repugnant to this constitution.”); Ga. Const. of 1861, Art. II, Sec. V, Par. VII (“The General Assembly shall have power to make all laws and ordinances, consistent with this Constitution and not repugnant to the Constitution of the Confederate States, which they shall deem necessary and proper for the welfare of the State.”); Ga. Const. of 1865, Art. II, Sec. V, Par. I (“The General Assembly shall have power to make all laws and ordinances consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.”); Ga. Const. of 1868, Art. III, Sec. V, Par. I (“The General Assembly shall have power to make all laws and ordinances consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.”); Ga. Const. of 1877, Art. III, Sec. VII, Par. XXII (“The General Assembly shall have power to make all laws and ordinances consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.”); Ga. Const. of 1945, Art. III, Sec. VII, Par. XX (“The General Assembly shall have the power to make all laws consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.”); Ga. Const. of 1976, Art. III, Sec. VIII, Par. I (same); Ga. Const. of 1983, Art. III, Sec. VI, Par. I (“The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.”).

25. Unlike in contract law, there is no such thing as a “voidable” statute. It is either void or not void. Black's Law Dictionary defines “voidable contract” as “[a] contract that can be affirmed or rejected at the option of one of the parties; a contract that is void as to the wrongdoer but not void as to the party wronged, unless that party elects to treat it as void.” Black's Law Dictionary (11th ed. 2019). A “void contract,” however, is defined as “[a] contract that is of no legal effect, so that there is really no contract in existence at all. A contract may be void because it is technically defective, contrary to public policy, or illegal.” Id. No such procedure applies in challenges to unconstitutional laws.

26. See also In the Interest of R. A. S., 249 Ga. 236, 237 (290 SE2d 34) (1982) (same); City of Atlanta v. Gower, 216 Ga. 368, 372 (116 SE2d 738) (1960) (same); Commrs. of Roads &c., 213 Ga. at 794 (same); Christian v. Moreland, 203 Ga. 20, 21 (45 SE2d 201) (1947) (same); Jones v. McCaskill, 112 Ga. 453, 456 (37 SE 724) (1900) (same); Central of Ga. R. Co. v. State, 104 Ga. 831, (31 SE 531) (1898) (If the act at issue “was unconstitutional as originally passed, ... it simply amounted to no law, and was just as if there had never been any attempt to legislate upon the subject.”).

27. See Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 9 (3) (178 SE2d 868) (1970) (“All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts.” (emphasis added)).

28. See also Grayson, 209 Ga. at 617 (2) (Because a Georgia legislative enactment conflicted with federal statutory antitrust law, and violated the United States Constitution's Supremacy Clause and Commerce Clause, the Georgia law was void ab initio and could not become valid due to a subsequent change in the federal statutes that removed the conflict.); Jamison v. City of Atlanta, 225 Ga. 51, 51 (165 SE2d 647) (1969) (To the extent, in Ga. L.1951, p. 3027, the General Assembly delegated its exclusive power to alter the corporate limits of the City of Atlanta to the city or to the Superior Court of Fulton County, the act was “void when passed, and being void at that time, no subsequent amendment of the Constitution granting authority to the General Assembly to delegate to a municipality such legislative powers could give it vitality.”); Commrs. of Roads &c., 213 Ga. at 793 (Where the original Workmen's Compensation Act, Ga. L. 1920, p. 167, was unconstitutional when passed in 1920 to the extent the General Assembly delegated to counties its authority to levy taxes to pay workmen's compensation to their employees, a constitutional amendment in 1945 that allowed the General Assembly to delegate that authority to counties of a certain population did not have the effect of re-enacting the 1920 Act.). An exception to the constitutional prohibition of retroactive legislation is that a constitutional amendment can authorize a specific exception such that a legislative act that was unconstitutional when passed can be revived and made effective. See Sherman v. Atlanta Indep. Sch. Sys., 293 Ga. 268, 277 (2) (c) (744 SE2d 26) (2013) (“[W]hile the Constitution generally prohibits retroactive legislation, a constitutional amendment can expressly authorize an exception to that general rule.” (citation omitted)); id. at 277-278 (2) (d) (An amendment to the Constitution's Redevelopment Powers Clause, as implemented by the subsequent revision of the Redevelopment Powers Law, both “established the rule for the future, and ratified what had been done in the past.” Accordingly, despite this Court's previous holding that school taxes could not constitutionally be applied to a development that was not necessary or incidental to public schools or education, and despite the general rule against retroactive legislation, the resolutions of the school board and the other local government acts, which predated the constitutional amendment, approving the use of school taxes for a project unrelated to education were not unconstitutional and remained effective. (citations and punctuation omitted)); Hammond v. Clark, 136 Ga. 313, 313 (71 SE 479) (1911) (Where a legislative act is declared unconstitutional by this Court, the General Assembly proposes an amendment to the Georgia Constitution that cures the defect which had existed in the legislative act and also expressly ratifies the act as of the dates of its passage, and the voters ratify the constitutional amendment, the act is not void ab initio.).

29. In Gower, we held that an act, Ga. L. 1960, p. 2848, which purported to amend an act passed the previous year, Ga. L. 1959, p. 3251, pertaining to local taxation, “could not add anything of substance” to the 1959 act, because the earlier act was invalid and unconstitutional when enacted and, therefore, could not be corrected by amending the act. Gower, 216 Ga. at 372. See R. Perry Sentell, Jr., “Unconstitutionality in Georgia: Problems of Nothing,” 8 Ga. L. Rev. 101 (1973) (describing Gower as evidence of this Court's “firm commitment to the void-from-inception doctrine”).

    The parties’ hotly contest the meaning of the following passage in Adams v. Adams, 249 Ga. 477 (291 SE2d 518) (1982), on the issue “whether the year's support statute [which had been amended in 1979 to eliminate any gender classification] must be declared unconstitutional on the theory that an amendment cannot breathe life into a statute void ab initio”:

    While we have declared statutes to be void from their inception when they were contrary to the Constitution at the time of enactment, City of Atlanta v. Gower, 216 Ga. 368 (116 SE2d 738) (1960); Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613 (75 SE2d 161) (1953); Jamison v. City of Atlanta, 225 Ga. 51 (165 SE2d 647) (1969); Jones v. McCaskill, 112 Ga. 453 (37 SE 724) (1900); those decisions are not applicable to the present controversy, as the original year's support statute, when adopted, was not violative of the Constitution under court interpretations of that period. The earlier year's support laws were enacted before the ratification of the Fourteenth Amendment to the U. S. Constitution in 1868, and similar acts have remained in force for more than a century before [Orr v. Orr, 440 U.S. 268 (99 SCt 1102, 59 LE2d 306) (1979), which held the gender classification of the Alabama alimony law to be a denial of equal protection under the Fourteenth Amendment to the U. S. Constitution]. See Code Ann. § 113-1002 (Ga.L.1838, Cobb, 296; superseded by Ga.L.1958, pp. 657, 666); Code Ann. § 113-1003 (Ga.L.1862-3, pp. 30, 31); Code Ann. § 113-1004 (Ga.L.1865-6, p. 31); Code Ann. § 113-1006 (Ga.L.1862-3, pp. 30, 31).

    We conclude that the year's support statute as amended is not unconstitutional.

    Adams, 249 Ga. at 479 (1). I am not persuaded that this opaque passage in Adams constitutes a holding that, to determine whether a statute is void ab initio, Georgia courts look to “court interpretations of th[e] period” when the law was adopted. See In the Interest of R. J. A., 316 Ga. 822, 824 (890 SE2d 698) (2023) (Pinson, J., concurring) (“[A] holding in an appellate opinion is a determination on a matter of law that is necessary to the decision in question. It is not always easy to figure out what parts of an appellate decision make up its holding. Questions about whether particular facts or reasoning are important or necessary to a decision, or just how necessary something must be to count as part of the holding, can be hard to answer.”); James B. Beam Distilling Co. v. State of Ga., 259 Ga. 363, 367 (3) (382 SE2d 95) (1989), rev'd on other grounds, 501 U. S. 529 (111 SCt 2439, 115 LE2d 481) (1991) (quoting Adams, including the “court interpretations of that period” language, in analyzing whether quoting Adams, including the “court interpretations of that period” language, in analyzing whether our ruling that an excise tax statute was unconstitutional should be given only prospective application as an exception to the general rule of voidness ab initio); Lawrence v. Lawrence, 254 Ga. 692, 692 (2) (333 SE2d 610, 612 (1985) (quoting Adams, including the “court interpretation of that period” language, and concluding that “our holding in Adams v. Adams establishes that those year's support awards entered prior to the corrective amendment of the [year's support] statute are valid.”). Even if, as the majority opinion holds, the plaintiffs’ reliance on Adams as precedent is misplaced, see Slip Op. at 25-26 (2) (d) (iii); id. at 31-32 (2) (d) (iv), however, the trial court's ruling (which did not rely on Adams for this principle) is still correct. Georgia's void ab initio doctrine, founded in the text of our Constitution and explained in the cases that I have discussed, requires the consideration of whether, when an act is passed, binding precedent pronouncing the meaning of relevant constitutional provisions renders the act unconstitutional from inception.

30. See Barnhill v. Alford, 315 Ga. 304, 311 (2) (b) (882 SE2d 245) (2022) (“In addressing the constitutionality of [a statute] we recognize that every reasonable construction must be resorted to in order to save a statute from unconstitutionality. This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that [members of] the legislature, like [members of] this Court, [are] bound by and swear[ ] an oath to uphold the Constitution. The courts will therefore not lightly assume that the legislature intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it. Therefore, all presumptions are in favor of the constitutionality of an Act of the legislature[,] and[,] before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable[,] and this Court must be clearly satisfied of its unconstitutionality. Moreover, because statutes are presumed to be constitutional until the contrary appears, the burden is on the party alleging a statute to be unconstitutional to prove it.” (citations and punctuation omitted)); State v. Randall, 315 Ga. 198, 200 (1) (880 SE2d 134) (2022) (“Properly enacted statutes carry a presumption of constitutional validity, and inquiry into the constitutionality of a statute generally should not be made by the trial courts if a decision on the merits can be reached without doing so.”); Sons of Confederate Veterans, 315 Ga. at 65 (2) (d) (i) (“[A]s a matter of constitutional avoidance, we must not address a constitutional question where it is unnecessary to do so. ... [I]t is well-settled that this Court will not decide a constitutional question if the decision in the appeal can be made upon other grounds[.]” (citation omitted)); Turner County v. City of Ashburn, 293 Ga. 739, 748-749 (749 SE2d 685) (2013) (The acts of the General Assembly are presumed to be constitutional, and courts “construe those acts as valid when possible.”); Plantation Pipe Line, 227 Ga. at 9 (3).

31. The trial court has not yet ruled on the question whether the 2019 Act is in violation of the Constitution of Georgia. The trial court did not need to reach that question under Georgia's void ab initio doctrine after ruling that the Act was void when enacted. A case quoted in the majority opinion, Building Auth. of Fulton County v. State of Ga., 253 Ga. 242 (321 SE2d 97) (1984), reflects these alternative bases: “The constitutionality of a law is to be determined by the constitution in effect on the date the law became effective and by the constitution now in effect.” Id. at 243 (emphasis added; footnote omitted)). See Slip Op. at 9-10 (2) (a). In other words, the constitutionality of a Georgia law is to be determined by whether it violated either the federal or state constitution when enacted (if so, it is unenforceable because it was void ab initio) and by whether it violates either constitution presently (if so, it is unenforceable because it is unconstitutional).

32. As noted in the majority opinion, the 2019 Act amended OCGA § 16-12-141 (b), among other provisions, to prohibit abortions “if the unborn child has been determined in accordance with Code Section 31-9B-2 to have a detectable human heartbeat[,]” with specified exceptions. See Slip Op. at pp. 2-3 (1); Ga. L. 2019, p. 711, § 4. Before the 2019 amendment, OCGA § 16-12-141 prohibited abortions when “the probable gestational age of the unborn child has been determined in accordance with Code Section 31-9B-2 to be 20 weeks or more[,]” with specified exceptions. The 2019 Act did not amend OCGA § 16-12-140, which defines the offense of “criminal abortion” as “when, in violation of Code Section 16-12-141, [a person] administers any medicine, drugs, or other substance whatever to any woman or when he or she uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.” OCGA § 16-12-140 (a). A conviction for the offense of criminal abortion is “imprisonment for not less than one nor more than ten years.” OCGA § 16-12-140 (a).

33. The Supreme Court of Iowa, one of the few other states with a constitutional provision for judicial review of statutes, see fn. 5, supra, recently refused to lift a permanent injunction on a six-week ban similar to the 2019 Act at issue in this case. Iowa's “fetal heartbeat law,” was passed in 2018, and a trial court declared that the law was unconstitutional under then-existing federal and state precedent and permanently enjoined enforcement of the law. See Planned Parenthood of the Heartland, Inc., et al. v. Reynolds et al., 2023 Iowa Sup. LEXIS 68, 2023 WL 4635932 (Case No. 22-2036, decided June 16, 2023). (Note: the Court was evenly divided, so the lower court's ruling was affirmed by operation of law.) In refusing to lift the injunction following the Dobbs decision, the Supreme Court of Iowa described the 2018 heartbeat law as “a hypothetical law” that was “moribund when enacted” and had no chance of taking effect because it violated both the United States Constitution (under Roe, Casey, etc.) and the Iowa Constitution (under existing state court precedent that applied an “undue burden” test to abortion regulation). Id.

34. Dobbs, 142 SCt at 2243.

35. See Dobbs, 142 SCt at 2243 (“It is time to heed the Constitution and return the issue of abortion to the people's elected representatives.”); id. at 2259 (“[W]e thus return the power to weigh those [policy] arguments [about abortion regulation] to the people and their elected representatives.”); id. at 2277 (“Our decision returns the issue of abortion to those legislative bodies[.]”); id. at 2279 (“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”); id. at 2284 (“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions, and return that authority to the people and their elected representatives.”); id. at 2305 (Kavanaugh, J., concurring) (“The Court's decision today properly returns the Court to a position of neutrality and restores the people's authority to address the issue of abortion through the processes of democratic self-government established by the Constitution.”); id. at 2310 (Kavanaugh, J., concurring) (“The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to the people and their elected representatives in the democratic process.”); see also id. at 2279 (“[I]n this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives.”); id. at 2308 (Kavanaugh, J., concurring) (“In this case, ... a majority of the States — 26 in all — ask the Court to overrule Roe and return the abortion issue to the States.”).

36. See Dobbs, 142 SCt at 2284; id. at 2309 (Kavanaugh, J., concurring) (“May a State retroactively impose liability or punishment for an abortion that occurred before today's decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause.”).

37. See Slip Op. at 13 (2) (b) (“[A] written constitution itself has a meaning that is fixed upon ratification and cannot change absent a constitutional amendment.” (citation omitted)); id. (“[T]he United States Constitution's ‘meaning does not alter,’ and ‘[t]hat which it meant when adopted, it means now.’ ”) quoting State of South Carolina v. United States, 199 U.S. 437, 448 (26 SCt 110, 50 LE 261) (1905), overruled on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (105 SCt 1005, 83 LE2d 1016) (1985). Placing the State of South Carolina quote in context, however, shows that the general principles by which the people grant power to (or withhold it from) the government are meant to be adapted to changing conditions:

    The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. Being a grant of powers to a government its language is general, and as changes come in social and political life it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable.

    State of South Carolina, 199 U.S. at 448-449. See Griffin v. Illinois, 351 U.S. 12, 26 (76 SCt. 585) (100 LE 891) (1956) (Frankfurter, J., concurring in judgment) (“We should not indulge in the fiction that the law now announced has always been the law. ... It is much more conducive to law's self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of law.”). A case cited by the majority opinion, Young v. State, 312 Ga. 71 (860 SE2d 746) (2021), see Slip Op. at 18-19 (2) (c), discusses how the definition of “cruel and unusual punishment” did not include executing an intellectually disabled offender in 1989, according to the Supreme Court in Penry v. Lynaugh, 492 U.S. 302 (109 SCt 2934, 106 LE2d 256) (1989), but it did include that form of punishment just 14 years later, according to the Supreme Court in Atkins v. Virginia, 536 U.S. 304 (122 SCt 2242, 153 LE2d 335) (2002), due to the evolution of our national standards of decency and the development of a national consensus on the issue. The text of the Eighth Amendment did not change from its ratification in 1789, yet the judicial interpretation of the text changed, and the scope of its protection of human dignity changed, to reflect changing national values. In another context, in 1972, the Supreme Court did not even find a substantial federal question on the issue of whether the United States Constitution requires states to license and recognize the marriage of a same-sex couple. See Baker v. Nelson, 409 U.S. 810 (93 SCt 37, 34 LE2d 65) (1972). Then, in 2015, the Supreme Court found that the choice of marriage partner is among the liberties of personal choice central to individual dignity and autonomy protected by the Fourteenth Amendment. See Obergefell v. Hodges, 576 U.S. 644 (135 SCt 2584, 192 LE2d 609) (2015). Clearly, even without a constitutional amendment, the effect of a constitutional provision can change, and this occurs through the process of judicial review.

38. See Dobbs, 142 SCt at 2242 (“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty. The right to abortion does not fall within this category.” (citations and punctuation omitted)); id. at 2320 (Breyer, Sotomayor, and Kagan, JJ., dissenting) (Stare decisis “contributes to the actual and perceived integrity of the judicial process by ensuring that decisions are founded in the law rather than in the proclivities of individuals.” (citations and punctuation omitted); id. at 2319-2320 (Breyer, Sotomayor, and Kagan, JJ., dissenting) (On the right to abortion, “[t]he Court reverses course today for one reason and one reason only: because the composition of this Court has changed. ... Today, the proclivities of individuals rule.”).

39. The Mississippi Legislature passed House Bill No. 1510 on March 8, 2018, and the governor approved it, and it became effective, on March 19, 2018. The act was codified as Miss. St. § 41-41-191. A 2014 law, the Women's Health Protection and Preborn Pain Act, codified at §§ 41-41-131 through 41-41-145, had generally banned abortion at or after 20 weeks gestational age. See Miss. St. §§ 41-41-137 (“Except as otherwise provided by Section 41-41-141, a person may not perform or induce or attempt to perform or induce an abortion on a woman if it has been determined, by the physician performing, inducing, or attempting to perform or induce the abortion or by another physician on whose determination that physician relies, that the probable gestational age of the unborn child is twenty (20) or more weeks.”); 41-41-147 (Abortions permitted by the act but prohibited by any other law are unlawful.).

40. In Beall, we quoted with approbation commentary by James Wilson, a former Associate Justice of the United States Supreme Court, on the supremacy of the constitution, as expressing the will of the people, over all three branches of government and on the duty of the judiciary to declare that a statute that clashes with the constitution must yield to the constitution, which is the fundamental law:

    The effects of this salutary regulation, necessarily resulting from the Constitution, are great and illustrious. In consequence of it, the bounds of the legislative power — a power the most apt to overleap its bounds — are not only distinctly marked in the system itself, but effectual and permanent provision is made, that every transgression of those bounds shall be adjudged and rendered vain and fruitless. What a noble guard against legislative despotism! Beall, 8 Ga. at 220.

41. I note that the General Assembly did not opt to pass a so-called “trigger law,” specifying that the law would become effective only in the event that the United States Supreme Court overturned Roe and Casey or if a constitutional amendment enabled state regulation of abortions. See, e.g., Ark. Acts 2019, No. 180, § 2 (“This act [prohibiting abortions except to save the life of a pregnant woman in a medical emergency] becomes effective on and after the certification of the Attorney General that: (1) The United States Supreme Court overrules, in whole or in part, the central holding of Roe v. Wade, 410 U.S. 113 (1973), reaffirmed by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), thereby restoring to the State of Arkansas the authority to prohibit abortion; or (2) An amendment to the United States Constitution is adopted that, in whole or in part, restores to the State of Arkansas the authority to prohibit abortion.”); Idaho Laws 2020, Ch. 284, § 1 (“Notwithstanding any other provision of law, this section [prohibiting abortions except to prevent a pregnant woman from dying, or in cases of rape or incest] shall become effective thirty (30) days following the occurrence of either of the following circumstances: (a) The issuance of the judgment in any decision of the United States supreme court that restores to the states their authority to prohibit abortion; or (b) Adoption of an amendment to the United States constitution that restores to the states their authority to prohibit abortion.”). I am not suggesting that the General Assembly should have passed a trigger law – such a law would subvert the re-enactment requirement of Georgia's void ab initio doctrine.

42. And there was little reason when the Act was passed to doubt the durability of Roe and Casey as precedent. The Dobbs case was not pending in the United States Supreme Court – the General Assembly passed the 2019 Act on March 29, 2019, and the governor signed it on May 7, 2019, more than one year before the filing of a petition for a writ of certiorari in the Dobbs case and two years before the Court decided to take up Mississippi's 15-week ban and granted the petition. See Dobbs v. Jackson Women's Health Org., 2020 WL 3317135 (Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit, filed June 18, 2020); Dobbs v. Jackson Women's Health Org., 593 U.S. __ (141 SCt 2619, 209 LE2d 748) (2021) (Petition for Writ of Certiorari, granted May 17, 2021). And at least two of the justices among the five who voted to overturn Roe and Casey testified at their confirmation hearings regarding the great importance of those cases as precedent, given that Roe’s essential holding regarding the constitutional protection of the right to choose a pre-viability abortion had been reaffirmed many times on the merits and especially given the precedent on Roe as precedent – Casey and other cases that examined the several stare decisis factors and held that stare decisis counseled against reexamination of the merits of the Roe decision. See Confirmation Hearing on the Nomination of the Hon. Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 115th Cong. 127 (2018) (testimony of J. Brett Kavanaugh) (“I said that [Roe] is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, ... and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992. And ... the Supreme Court did not just reaffirm [Roe] in passing. The Court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O'Connor, and Justice Souter, at great length went through those factors. That was the question presented in the case.”); id. at 128 (“[Roe] is important precedent of the Supreme Court that has been reaffirmed many times. But ... the point ... that I think is important [is that] Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors. So Casey now becomes a precedent on precedent. It is not as if [Roe] is just a run of the mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”); id. at 245 (In response to a question whether Judge Kavanaugh, in previous employment in the George W. Bush administration, took the position that not all legal scholars believe that Roe v. Wade is the settled law of the land, that the Supreme Court could overturn it as precedent, and that, in fact, there were a number of Justices who would do so: “[S]ome legal scholars have undoubtedly said things like that over time, but that is different from what I as a judge — my position as a judge is that there are 45 years of precedent and there is Planned Parenthood v. Casey, which reaffirmed Roe, so that is precedent on precedent, as I have explained, and that is important. And that is an important precedent of the Supreme Court.”); Confirmation Hearing on the Nomination of the Hon. Samuel A. Alito, Jr., to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 321 (2006) (testimony of J. Samuel Alito) (“I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent[.] ... [W]hen a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis, and when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.”); id. at 454-455 (“[W]hat I have said about Roe is that if the issue were to come before me if I am confirmed, and I'm on the Supreme Court, ... the first step in the analysis for me would be the issue of stare decisis, and that would be very important. ... [A] great deal has happened in the case law since [I opined in a 1985 job application that Roe should be overruled]. Thornburgh was decided, and then Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law. ... Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time. It has been challenged on a number of occasions, ... and the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes [as] in Casey based on stare decisis, and I think that when a decision is challenged and it is reaffirmed that strengthens its value as stare decisis for at least two reasons. First of all, the more often a decision is reaffirmed, the more people tend to rely on it, and second, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior Justices who take the same oath and are scholars and are conscientious, and when they examine a question and they reach a conclusion, I think that's entitled to considerable respect, and of course, the more times that happens, the more respect the decision is entitled to[.] ... If [the term “]settled [law of the land”] means that [Roe] is a precedent that is entitled to respect as stare decisis, and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.”)

43. See also Ga. Const. of 1983, Art. I, Sec. II, Par. III (“The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.); Art. VI, Sec. I, Par. I (“The judicial power of the state shall be vested exclusively in” designated classes of courts.); Etkind v. Suarez, 271 Ga. 352, 353 (1) (519 SE2d 210) (1999) (“[T]he doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. Under that doctrine, statutory construction belongs to the courts, legislation to the legislature.” (citations and punctuation omitted)).

44. This Court's exclusive appellate jurisdiction is established by Ga. Const. of 1983, Art. VI, Sec. VI, Par. II. See State v. Davis, 303 Ga. 684, 687 (1) (814 SE2d 701) (2018). That paragraph provides in pertinent part:

    The Supreme Court shall be a court of review and shall exercise exclusive appellate jurisdiction in the following cases:

    (1) All cases involving the construction of a treaty or of the Constitution of the State of Georgia or of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question.

    “We have interpreted this jurisdictional provision to extend only to constitutional issues that were distinctly ruled on by the trial court and that do not involve the application of unquestioned and unambiguous constitutional provisions or challenges to laws previously held to be constitutional against the same attack.” Davis, 303 Ga. at 687 (1) (citation and punctuation omitted).

45. See also Powell v. State, 270 Ga. 327, 329 (3) (510 SE2d 18) (1998) (This Court, in Pavesich, was the first “court of last resort in this country” to recognize the right to privacy, “making this Court a pioneer in the realm of the right of privacy.”); Zant v. Prevatte, 248 Ga. 832, 834 (286 SE2d 715) (1982) (The right to privacy includes the right to refuse even life-saving medical treatment.); Pavesich, 122 Ga. at 190 (“The right of privacy is embraced within the absolute rights of personal security and personal liberty.”); id. at 197-199 (The Georgia Constitution protects the right to privacy, which is derived from natural law, in provisions which declare that no person shall be deprived of liberty except by due process of law and that the right of the people to be secure in the persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.); Fincher v. State, 231 Ga. App. 49, 53-54 (497 SE2d 632) (1998) (The right to privacy “consists of two inter-related strands; one protects an individual's interest in avoiding disclosure of personal matters (the confidentiality strand) and the other protects an individual's interest in making certain personal decisions free of government interference (the autonomy strand).” (citation and punctuation omitted)); OCGA § 31-39-1 (legislative findings that, in the interest of “protecting individual autonomy,” and in recognition of patients’ “dignity and privacy,” patients may instruct health care personnel to refrain from performing cardiopulmonary resuscitation); Joel Feinberg, “Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?,” 58 Notre Dame L. Rev. 445, 446 (1983) (The term “right of privacy” in the context of constitutional law represents the concept of personal autonomy and self-governance.).

46. See Powell, 270 Ga. at 330-331 (3) (The United States Constitution “protects only those matters deeply rooted in this Nation's history and tradition or which are implicit in the concept of ordered liberty.” (citation and punctuation omitted)).

47. See Powell, 270 Ga. at 329 (3) (Since this Court's decision in Pavesich, “the Georgia courts have developed a rich appellate jurisprudence in the right of privacy which recognizes the right of privacy as a fundamental constitutional right, having a value so essential to individual liberty in our society that its infringement merits careful scrutiny by the courts.” (citation and punctuation omitted)); id. (The right to privacy under the Georgia Constitution is “immutable and absolute.”); Pavesich, 122 Ga. at 194 (The right to privacy is “fundamental” because it is “derived from natural law,” which means that the right is not derived from or granted by the constitution, and, to the extent that provisions protecting particular aspects of the right are included in the constitution, infringement of the right by the government was specifically prohibited, on account of gross violations in the past.).

48. See King v. State, 276 Ga. 126, 127-128 (2) (577 SE2d 764) (2003) (“When an individual challenges the State's action for violating the fundamental right to privacy, the State must show that its intrusion into the individual's private life serves a compelling state interest and is narrowly drawn to achieve that interest.”); Powell, 270 Ga. at 333 (3) (“As judicial consideration of the right to privacy has developed [since Pavesich], this Court has concluded that the right of privacy is a fundamental right and that a government-imposed limitation on the right to privacy will pass constitutional muster if the limitation is shown to serve a compelling state interest and to be narrowly tailored to effectuate only that compelling interest.”); id. at 334 (3) (Legislation in exercise of the state's police power “must serve a public purpose and the means adopted to achieve the purpose must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon the persons regulated.”).

49. In the law at issue in Dobbs, the Mississippi legislature asserted an interest in “protecting the life of the unborn.” Dobbs, 142 SCt at 2284. The Dobbs majority condemned the dissent for its lack of “any serious discussion of the legitimacy of the States’ interest in protecting fetal life.” Id. at 2261. But the Dobbs majority itself lacked any serious discussion of the legitimacy or scope of the states’ interest in protecting embryonic or fetal life. The Dobbs majority merely posited as established that “respect for and preservation of prenatal life at all stages of development” is a legitimate state interest. Id. at 2284. See Powell, 270 Ga, at 335-336 (3) (The fact that a law may reflect the moral choice of the majority does not “exempt” a law regulating private conduct “from judicial review testing [its] constitutional mettle.”); see id. at 337 (Sears, J., concurring) (“Simply because something is beyond the pale of ‘majoritarian morality’ does not place it beyond the scope of constitutional protection.”).

50. See King v. State, 272 Ga. 788, 790 (1) (535 SE2d 492) (2000) (A patient's medical information “is certainly a matter which a reasonable person would consider to be private.”); id. 792 (1) (“[U]nlimited use of the subpoena power in a criminal case might well serve the State interest of law enforcement, [but] it cannot be said to do so in a reasonable manner if it violates the accused's constitutional right of privacy.” (punctuation omitted)); id. at 793-794 (1) (To the extent that a statute permitted the State to obtain a patient's medical records by issuing an ex parte subpoena, the statute as applied to her violated her constitutional right to privacy, because she had not waived her right to privacy as to the records and was not given notice and an opportunity to object before the hospital released them.); Powell, 270 Ga. at 333-334 (3) (In light of the existence of criminal statutes that prohibit conduct that amounts to sexual assault or that would inadvertently expose the public to the intimacies of others, the statute prohibiting private, consensual sodomy did not serve a compelling state interest but only served “to regulate the private sexual conduct of consenting adults,” which is conduct that “Georgians’ right of privacy puts beyond the bounds of government regulation.”); id. at 336 (3) (“[I]nsofar as [the sodomy statute] criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent, [it] manifestly infringes upon a constitutional provision which guarantees to the citizens of Georgia the right of privacy.” (citation and punctuation omitted)).

51. For example, Section 3 of the 2019 Georgia defines as a “natural person” any “member of the species Homo sapiens at any stage of development who is carried in the womb[.]” Ga. L. 2019, p. 711, § 3; see OCGA § 1-2-1 (b) (“ ‘Natural person’ means any human being including an unborn child.”); (e) (2) (“As used in [OCGA § 1-2-1], the term ... ‘[u]nborn child’ means a member of the species Homo sapiens at any stage of development who is carried in the womb.”). Section 3 invites litigation on the issue whether embryos at stages of development earlier than when cardiac activity can be detected are protected by the federal or state constitutions.