Georgia Supreme Court Reinstates State Abortion Law While Appeal Is Heard

SUPREME COURT OF GEORGIA
Case No. S25M0216
October 7, 2024
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
STATE OF GEORGIA v. SISTERSONG WOMEN OF COLOR

REPRODUCTIVE JUSTICE COLLECTIVE et al.
The State of Georgia’s Emergency Petition for Supersedeas

seeking a stay of the order of the Superior Court of Fulton County
in the above-styled action is hereby GRANTED with respect to
OCGA § 16-12-141, except as to OCGA § 16-12-141 (f).
The State of Georgia’s Emergency Petition for Supersedeas

seeking a stay of the order of the Superior Court of Fulton County
in the above-styled action is hereby GRANTED with respect to
OCGA § 31-9B-3 (a).
To the extent the State also seeks an “administrative stay,”

that motion is dismissed as moot.
This order shall take effect as of 5:00 p.m. on October 7, 2024.
All the Justices concur, except Ellington, J., who concurs in part
and dissents in part. Peterson, P.J., disqualified, and Pinson, J., not
participating.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
ELLINGTON, Justice, concurring in part and dissenting in part.
The trial court in this case exercised its jurisdiction under Title
9 of the Georgia Code to issue a judgment declaring that Section 4
of the “LIFE Act,” 2019 Ga. Laws Act 234 (H.B. 481), which amended
OCGA § 16-12-141, is unconstitutional (and that Section 11, which
amended OCGA § 31-9B-3 fails without Section 4). See OCGA § 9-4-
1 et seq. And the trial court exercised its jurisdiction to award to the
petitioners such relief as the pleadings and evidence showed them
to be entitled, specifically, an injunction prohibiting enforcement of
those unconstitutional laws by the State or any of its agents. See
OCGA § 9-4-3; James B. Beam Distilling Co. v. State, 263 Ga. 609,
613 (5) (437 SE2d 782) (1993) (“[A] petition may be filed seeking a
judgment declaring a statute or ordinance unconstitutional and
praying for an injunction against the enforcement of the questioned
law.”).
The State has filed a notice of appeal from the trial court’s
judgment, as it is entitled to do, and, as provided by law, the trial
court will transmit the necessary parts of the record, and the appeal
2
will be docketed in this Court. In the normal course, we will be
deciding the merits of the State’s claims of error after briefing, oral
argument, and due deliberation under our Constitution, the
Appellate Practice Act, and other applicable legal authority – and
relatively expeditiously, given the constraints of Georgia’s two-term
rule. See Ga. Const. of 1983, Art. VI, Sec. IX, Par. II (“The Supreme
Court and the Court of Appeals shall dispose of every case at the
term for which it is entered on the court's docket for hearing or at
the next term.”); OCGA § 15-2-4 (b) (terms of court of the Supreme
Court of Georgia). To the extent the State prevails on appeal, all or
parts of the trial court’s judgment may be reversed, and the
injunction may be lifted.
The State’s emergency petition for supersedeas seeks to have
the injunction issued by the trial court lifted immediately.
Generally, the filing of a notice of appeal in an injunction case does
not serve as a supersedeas. See OCGA § 9-11-62 (a); Brown v. Spann,
271 Ga. 495, 495 (520 SE2d 909) (1999). In the case of an order
granting an injunction, the General Assembly has provided that
3
such orders “shall not be stayed during the period after its entry and
until an appeal is taken or during the pendency of an appeal” unless
“otherwise ordered by the [trial] court,” which, “in its discretion may
suspend, modify, restore, or grant an injunction during the pendency
of the appeal upon such terms as to bond or otherwise as it considers
proper for the security of the rights of the adverse party.” OCGA §
9-11-62 (a), (c). See Green Bull Georgia Partners, LLC v. Register,
301 Ga. 472, 473 (801 SE2d 843) (2017) (“Although the appellate
courts also have the authority to grant a stay or injunction pending
appeal, an application for such relief ordinarily ought to be directed
in the first instance to the trial court.”).
It makes sense that the General Assembly committed this
discretion to the trial court in the first instance, since such an order
granting an injunction with immediate effect on its face represents
a determination, after weighing evidence regarding the parties’
competing interests and claims of impending harm, that the
enjoined action (in this case, enforcement of specific statutory
provisions) should not occur unless and until the injunction is
4
subsequently modified or lifted. In its emergency motion, the State
concluded its argument with, “[a]s in ‘most cases,’ a stay pending
resolution of this appeal is appropriate[,]” citing Green Bull, 301 Ga.
at 475. The State conveniently ignores the fact that Green Bull
concerned an appeal from a trial court order granting an injunction
pending appeal under OCGA § 9-11-62, the procedure the State
seeks to sidestep here. Contrary to the State’s position, our decision
in Green Bull actually highlights the importance of the trial court’s
discretion in this arena: in that case, the trial court initially and
provisionally determined that an interlocutory injunction pending
final judgment from a pending foreclosure might be appropriate;
after further proceedings, the trial court decided that an injunction
was not appropriate; and the trial court then determined under
OCGA § 9-11-62 that “the case [was] close enough to warrant an
injunction pending appeal[.]” Id. Nothing in the trial court’s order in
this case suggests a view that it was a close call whether to grant
the plaintiffs’ requested relief.
5
In its motion, the State fails to show any reason for urgency
that goes beyond their underlying arguments in favor of allowing
the State to prevent women from deciding whether to terminate a
pregnancy after embryonic cardiac activity can be detected and
before a fetus is viable. The fact that the plaintiffs faced a heavy
burden in establishing that Section 4 violates the Georgia
Constitution is no sound reason to grant the State’s motion for a
stay, given that the only court of competent jurisdiction to issue a
ruling on this issue thus far determined that the plaintiffs have
carried that burden. The parties’ competing arguments about the
harm flowing from either the enforcement or the non-enforcement of
the statutory provisions at issue will form the crux of the appeal to
come and should not be predetermined in the State’s favor before
the appeal is even docketed.
Cautious of usurping the authority of the General Assembly to
establish trial court and appellate procedure, including provisions
regarding when a notice of appeal acts as supersedeas (see OCGA §§
5-6-45; 5-6-46; 9-11-62), we routinely deny requests for supersedeas
6
that is otherwise prohibited by law, just as we tend to affirm trial
court rulings regarding injunctions pending appeal, as we did in
Green Bull. We should deny the State’s request now. The injunction
at issue here concerns much more than a discrete legal dispute
between particular parties. Fundamentally, the State should not be
in the business of enforcing laws that have been determined to
violate fundamental rights guaranteed to millions of individuals
under the Georgia Constitution. The “status quo” that should be
maintained is the state of the law before the challenged laws took
effect. Accordingly, I dissent from the instant order, in part, to the
extent it grants a stay of the injunction against enforcement of
OCGA § 16-12-141, as amended by Section 4 of the 2019 LIFE Act,
and of OCGA § 31-9B-3 (a), as amended by Section 11 of the Act,
except that I concur to the extent the order declines to stay
enforcement of OCGA § 16-12-141 (f), as amended by Section 4 of the
Act.

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SUPREME COURT OF GEORGIA

Case No. S25M0216

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

STATE OF GEORGIA v. SISTERSONG WOMEN OF COLOR

The State of Georgia’s Emergency Petition for Supersedeas

The State of Georgia’s Emergency Petition for Supersedeas

To the extent the State also seeks an “administrative stay,”

This order shall take effect as of 5:00 p.m. on October 7, 2024.

I certify that the above is a true extract from the

9 of the Georgia Code to issue a judgment declaring that Section 4

OCGA § 16-12-141, is unconstitutional (and that Section 11, which

petitioners such relief as the pleadings and evidence showed them

to be entitled, specifically, an injunction prohibiting enforcement of

those unconstitutional laws by the State or any of its agents. See

judgment declaring a statute or ordinance unconstitutional and

praying for an injunction against the enforcement of the questioned

judgment, as it is entitled to do, and, as provided by law, the trial

argument, and due deliberation under our Constitution, the

Appellate Practice Act, and other applicable legal authority – and

relatively expeditiously, given the constraints of Georgia’s two-term

term for which it is entered on the court's docket for hearing or at

Court of Georgia). To the extent the State prevails on appeal, all or

parts of the trial court’s judgment may be reversed, and the

injunction may be lifted.

The State’s emergency petition for supersedeas seeks to have

the injunction issued by the trial court lifted immediately.

Generally, the filing of a notice of appeal in an injunction case does

not serve as a supersedeas. See OCGA § 9-11-62 (a); Brown v. Spann,

granting an injunction, the General Assembly has provided that

until an appeal is taken or during the pendency of an appeal” unless

suspend, modify, restore, or grant an injunction during the pendency

of the appeal upon such terms as to bond or otherwise as it considers

courts also have the authority to grant a stay or injunction pending

appeal, an application for such relief ordinarily ought to be directed

in the first instance to the trial court.”).

It makes sense that the General Assembly committed this

granting an injunction with immediate effect on its face represents

a determination, after weighing evidence regarding the parties’

competing interests and claims of impending harm, that the

enjoined action (in this case, enforcement of specific statutory

provisions) should not occur unless and until the injunction is

concluded its argument with, “[a]s in ‘most cases,’ a stay pending

resolution of this appeal is appropriate[,]” citing Green Bull, 301 Ga.

concerned an appeal from a trial court order granting an injunction

pending appeal under OCGA § 9-11-62, the procedure the State

seeks to sidestep here. Contrary to the State’s position, our decision

in Green Bull actually highlights the importance of the trial court’s

provisionally determined that an interlocutory injunction pending

final judgment from a pending foreclosure might be appropriate;

after further proceedings, the trial court decided that an injunction

OCGA § 9-11-62 that “the case [was] close enough to warrant an

injunction pending appeal[.]” Id. Nothing in the trial court’s order in

the plaintiffs’ requested relief.

that goes beyond their underlying arguments in favor of allowing

the State to prevent women from deciding whether to terminate a

pregnancy after embryonic cardiac activity can be detected and

burden in establishing that Section 4 violates the Georgia

Constitution is no sound reason to grant the State’s motion for a