A curious case about to be decided by the Supreme Court of Georgia could have profound implications for constitutional government in the United States.
In 2012, the state legislature passed a so-called “fetal pain law,” which bans abortions after 20 weeks and grants district attorneys access to patients’ medical records. Three doctors promptly filed a lawsuit against the state, arguing that the law violates individuals’ privacy rights under the state constitution. Claiming “sovereign immunity” from litigation, officials in the state argued that its legislature cannot be sued by citizens who claim they have been harmed by its unconstitutional laws. The case—Lathrop v. Deal—has taken five years to wind through the Georgia court system. In the process it has created some unlikely alliances among special interest groups—including a pro-gun group and human rights organizations—and sparked an intense debate about state immunity from citizens’ lawsuits.
While many states have enacted legislation barring or capping damages claims against states, Georgia’s case is vexing in that the doctors are not seeking money but relief from an unconstitutional law. The central question at stake has its roots in a 1991 amendment to Georgia’s constitution, which made the legislature responsible for waiving sovereign immunity for the state, its agencies, and its officials. That means state officials cannot be sued except under especially egregious circumstances—if they neglect their ministerial duties or “act with malice.” Yet the issue in this case, the appellants argue, is not that state officials refuse to enforce a statute. It’s that they are currently enforcing an unconstitutional one.
And that’s exactly the rub. The doctors and their lawyers argue that if the principle of sovereign immunity applies in this case, the state’s system of checks and balances will collapse. During oral arguments before the Supreme Court in January, Don Samuel, a lawyer for the appellants, said it would be “an astounding proposition” for the justices to “single out this state as the only state in the entire country in which the Bill of Rights is subservient to the whims of the legislature.” The court has set for itself a deadline of July 2 to hand down a decision in the case.
The principle of sovereign immunity in the United States is a vestige of the English common-law system. It is derived from the legal maxim, Rex non potest peccare: the king can do no wrong.