Slate: “The void ab initio doctrine has obvious application in SisterSong. As McBurney explained, “The proper legal milieu in which to assess the LIFE Act’s constitutionality is not our current post-Roe Dobbsian era but rather the legal environment that existed” when it was enacted. “At that time—the spring of 2019—everywhere in America, including Georgia, it was unequivocally unconstitutional” to outlaw pre-viability abortions. That means that the LIFE Act “did not become the law of Georgia when it was enacted and it is not the law of Georgia now.”
In defending the ban, Georgia lawyers deployed an almost metaphysical argument to get around this problem: They argued that “there was never a federal constitutional right to abortion,” because Roe and Casey were always wrong. In their view, the LIFE Act was not void when it passed, but rather the victim of a mistaken and now-abandoned line of Supreme Court precedent—one that, according to the absurd logic of their argument, never held the true force of law.
It was this claim that prompted McBurney to explain, in cynical and blistering terms, why Georgia’s theory is mistaken. For 50 years, he wrote, the Supreme Court recognized a right to abortion. “Those prior pronouncements carried no lesser effect and were entitled to no less deference in Georgia or anywhere else in the Republic than that which we all must afford the Dobbs decision.” But Dobbs does not retroactively revoke the force or legitimacy of the decisions it overruled. “Dobbs’ authority flows not from some mystical higher wisdom,” McBurney wrote, “but instead basic math.””