Georgia’s highest court on Monday grappled with the weighty question of whether state judges are barred from reviewing challenges to state laws — even those that are blatantly unconstitutional.

A state attorney told the justices that such challenges are prohibited by the doctrine of sovereign immunity. That doctrine, embedded in a 1991 state constitutional amendment, shields governments at all levels from lawsuits unless the Legislature grants a specific waiver to allow them.

There is no waiver that permits a lawsuit brought by three abortion doctors who are challenging the state’s “fetal pain” law, Sarah Warren, the state’s solicitor general, said. The 2012 statute says that because a fetus can experience pain after 20 weeks of gestation, doctors can be charged with a felony for performing most abortions after that threshold.

But the merits of this suit, filed in Fulton County, have yet to be considered. Last year, a judge dismissed the case on the grounds that the Legislature did not waive sovereign immunity for the lawsuit that contends the fetal-pain law violates privacy rights.

“The people of Georgia meant what they said when they passed the 1991 amendment,” Warren said.

During Monday’s arguments, several extreme examples were made to hypothesize what laws could be enacted and not be subject to a constitutional challenge: a law requiring children to go to school 20 hours a day, seven days a week; a law banning Muslims from sitting as judges; and a law that says only Christians from the Presbyterian Church can be a state court judge.


Warren, the state solicitor general, said there are other ways citizens can challenge the constitutionality of a state law. They can file suit in federal court, ask the Legislature to grant a waiver to sue, amend the state constitution, or be arrested and challenge the law as part of a defense.