Sweeping ruling says state cannot be sued without its consent

The Georgia Supreme Court on Monday ruled that the state is immune from lawsuits that challenge the constitutionality of statutes passed by the General Assembly.

“Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent,” Justice Keith Blackwell wrote for a unanimous court.

The landmark ruling struck down a challenge brought by three OB-GYN doctors against a Georgia law that prohibits most abortions after 20 weeks of pregnancy. The justices upheld a ruling last year by a Fulton County judge who dismissed the suit.

In 1973, the U.S. Supreme Court upheld a woman’s right to abortion until the time a fetus is viable — now considered to be about 24 weeks after conception. But a 2012 state law says Georgia has an interest in protecting fetuses after 20 weeks because they are capable of feeling pain.

The law says doctors who perform abortions after the 20-week threshold can be charged with a felony and face up to 10 years in prison. It also gives district attorneys access to abortion patients’ medical records.

The doctors’ suit contended the “fetal pain” law violates the state’s constitutional right to privacy.

The state high court said the state is shielded from such lawsuits under the legal doctrine of sovereign immunity, which is rooted in the centuries-old English principle that “the king can do no wrong.”

Under Monday’s ruling, sovereign immunity bars claims against government officials acting in their official capacities. This includes requests for injunctions to halt the implementation of an unlawful statute and suits that ask state court judges to declare a law to be unconstitutional.

Wrote Blackwell: “We hold today that the doctrine of sovereign immunity extends generally to suits against the state, its departments and agencies, and its officers in their official capacities for injunctive and declaratory relief from official acts that are alleged to be unconstitutional.”

The opinion did, however, note there are some avenues “by which aggrieved citizens may obtain prospective relief from threatened enforcement of unconstitutional laws.” This would be lawsuits against government employees in their personal, not official, capacities.

Blackwell acknowledged arguments that lawsuits against state officials acting in their individual capacities are not as convenient as a suit against the state itself.

“That may be true, but if so, that is simply a cost of sovereign immunity, albeit one that the General Assembly could eliminate” by waiving sovereign immunity in lawsuits like the one challenging the “fetal pain” law, Blackwell said.

In past years, the Legislature enacted a number of limited waivers of sovereign immunity. It allowed for breach-of-contract lawsuits against government agencies as well as tort claims, such as suits seeking damages for injuries in a car crash caused by an official driving a state vehicle.

In the 2016 General Assembly, both the House and Senate overwhelmingly passed legislation to allow lawsuits that challenge the constitutionality of state laws or local ordinances. But Gov. Nathan Deal vetoed the bill.

Blackwell noted there are other ways around sovereign immunity.

“Aside from cases that run up against the bar of sovereign immunity, the courts may have occasion to address the constitutionality of statutes in cases between private parties, cases against the state in which sovereign immunity has been waived, cases brought by the state and cases against state officers in their individual capacities,” Blackwell wrote.

“Indeed, many constitutional guarantees specifically protect the rights of criminal defendants,” who may assert those rights when being prosecuted, the ruling said. “The doctrine of sovereign immunity leaves plenty of room for the exercise of judicial review.”

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