Lathrop v. Deal (Supreme Court of Georgia, 2017)

This case involves a state constitutional challenge to a Georgia law prohibiting abortion after 20 weeks. However, the issue before the Supreme Court of Georgia concerns sovereign immunity. Georgia’s constitution provides its legislature with broad sovereign immunity, but also empowers the state judiciary to declare void legislative acts that are unconstitutional. In this case, the lower court dismissed the constitutional challenge on sovereign immunity grounds. ADL joined an amicus brief arguing that the lower court decision is unprecedented because it renders illusory express state constitutional rights, including the rights to liberty, equal protection, freedom of conscience and privacy. Furthermore, the decision below undermines separation of powers by negating the judiciary’s constitutional authority. The brief makes two specific arguments for why sovereign immunity is inapplicable to challenges asserting express constitutional rights: first, because the legislature’s authority is defined and limited by the state Constitution, sovereign immunity cannot apply to acts or conduct falling outside that authority. Second, there is an implicit waiver of sovereign immunity when the legislature acts in contravention of rights expressly guaranteed by the Constitution.