Georgia choose strikes down anti-abortion regulation permitted earlier than U.S. Supreme Court docket overturned Roe. Is there an analogous path in Arkansas?

Consider it or not, a Georgia state courtroom ruling putting down a six-week abortion ban in Georgia has some resonance in Arkansas.

Dreaming a bit, I do know.

The Fulton County judge wrote that key elements of Georgia’s so-called heartbeat regulation (six-week-old fetuses produce electrical impulses, not heartbeats) “have been plainly unconstitutional when drafted, voted upon, and enacted” and the regulation couldn’t be enforced. The regulation was handed earlier than the Dobbs choice by the U.S. Supreme Court docket upended a half-century precedent of Roe v. Wade (states couldn’t ban abortions pre-viability) and returned energy to the states.

The choose wrote when the regulation took impact, “all over the place in America, together with Georgia, it was unequivocally unconstitutional for governments — federal, state, or native — to ban abortions earlier than viability.”

He held that underneath Georgia authorized precedent an unconstitutional regulation is void from the second of adoption. It may be introduced again to life solely by legislative re-enactment. May the identical argument be made in Arkansas, the place all anti-abortion legal guidelines preceded the Dobbs ruling, together with the so-called set off regulation that bans just about all abortions and supplies no exceptions aside from ectopic being pregnant or in life-or-death conditions?

Plenty of consideration has been given to a pointy footnote in the 15-page opinion.

All the time learn the footnotes:

This Georgia choose has some ideas in regards to the five-justice majority that overruled Roe v. Wade. (He’s proper.) https://t.co/SVMORyVciR pic.twitter.com/EmKk1QTJ5a

— Cristian Farias (@cristianafarias) November 15, 2022

The plaintiffs additionally argued that the Georgia regulation violated pregnant folks’s rights to liberty and privateness underneath the state structure. In the intervening time, the choose put most of that argument apart.

For now, he stated, the voided statute might be introduced again to life provided that the legislature handed it once more. Then:

Beneath Dobbs, it could sometime change into the regulation of Georgia, however solely after our Legislature determines within the sharp glare of public consideration that can undoubtedly and correctly attend such an necessary and consequential debate whether or not the rights of unborn kids justify such a restriction on girls’s proper to bodily autonomy and privateness.

He did maintain alive a constitutional problem to part of the regulation that allowed prosecutors to acquire medical data of a lady who had an abortion. The choose stated the declare of a privateness violation on this level “survives the preliminary authorized assault” and he’ll handle the declare on the deserves in a later order.

The Georgia Structure provides robust safety to the privateness of medical data (as does Arkansas regulation), stronger even than federal safety and he noticed the state should present a compelling curiosity to override privateness. However “whereas regulation enforcement and public security are certainly species of compelling State curiosity, there may be nothing ‘slender’  a few statutory provision purportedly targeted on abortion that might empower a prosecutor to acquire all ‘well being (or hospital) data of a affected person.”

Beneath this choose’s principle, Arkansas legal guidelines additionally might be struck down on the timing query. Arkansas’s structure additionally arguably affords safety for privateness and girls’s rights. The Georgia choose stated the legislature may move these legal guidelines once more after which it might be left to the courts to sq. these legal guidelines — actually permissible underneath Dobbs — with the state Structure.

Is there a choose in Arkansas prepared to write down because the Fulton County, Ga., choose did? Would the Arkansas Supreme Court docket overturn our abortion bans on privateness or girls’s rights grounds, even when they have been held to outlive regardless of having been adopted when unconstitutional?  How shortly would this legislature transfer to readopt our punitive regulation? (That is extra of a query in Georgia, the place passage of the anti-abortion regulation was a better name.)

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