Long before the Supreme Court overruled Roe v. Wade last spring, GOP-controlled state legislatures were passing laws trying to eviscerate abortion rights. That includes Georgia’s legislature, which in 2019 passed House Bill 481, a law that criminalized abortion after six weeks of pregnancy.
In an opinion published this week, a state court judge in Fulton County, Georgia, Robert McBurney, struck down two parts of the law: one that criminalized abortion prior to viability, and another that required doctors to report to the state Department of Public Health their reasons for performing any abortions after six weeks of pregnancy. These provisions were invalid when the state legislature first passed them, McBurney explained, because at the time, “the supreme law of this land unequivocally was—and had been for nearly half a century—that laws unduly restricting abortion before viability were unconstitutional.”
In other words, the legislature was acting unlawfully when it passed House Bill 481 while Roe was still good law, and the Court’s subsequent decision in Dobbs v. Jackson Women’s Health Organization didn’t retroactively ratify that illegal stunt. “It did not become the law of Georgia when it was enacted and it is not the law of Georgia now,” McBurney wrote.
Setting aside the substance of the ruling, McBurney’s opinion was sprinkled with refreshing candor about the transparently political nature of the result in Dobbs, which only became possible after the confirmation of Justice Amy Coney Barrett created a 6-3 conservative supermajority on the Court. In a lengthy footnote, he took particular umbrage at Georgia’s claim that there was “never” a constitutional right to abortion, emphasizing that the Court had recognized the right to abortion “repeatedly” over five decades, and that the “Dobbs majority is not somehow ‘more correct’ than the majority that birthed Roe or Casey.” Despite the “frothy language disparaging the views espoused by previous Justices,” McBurney continued, Dobbs “flows not from some mystical higher wisdom but instead basic math.”
McBurney, who was appointed by Republican Governor Nathan Deal in 2012, reserved some biting criticism for the Georgia legislature as well. At the time of its passage, House Bill 481’s passage was mostly symbolic, as lawmakers were aware that it would almost certainly fail once challenged in court. But given that “a next round of abortion legislation will carry real consequences for legislators and their constituents alike,” he wrote, if Republicans want to pass a new, post-Dobbs version of House Bill 481, they will have to do so “in the sharp glare of public attention.”
Earlier this year, Chief Justice John Roberts rejected questions about the Court’s waning legitimacy, claiming that the institution can’t be questioned “simply because people disagree with an opinion.” Justice Samuel Alito, who wrote the opinion in Dobbs, and Justice Amy Coney Barrett have echoed this sentiment. But McBurney is not alone in feeling differently: The most recent available Gallup polling shows that 58 percent of Americans disapprove of the way the Supreme Court is conducting itself—an all-time high.
What makes McBurney’s reprimand so striking is that these critiques are now coming from within the ranks of the judiciary itself. More people than ever understand the reality of the political Court—except the conservative justices who control it.
