Certainly, McBurney did not attempt to conceal his own contempt for Dobbs. The pointed quotation marks ("historical 'facts' ") gesture toward the majority's butchering of history. The sardonic quips indicate displeasure with Justice Samuel Alito's strident and angry assault on women's equality. But this rhetoric should not distract from McBurney's fundamentally sound conclusion. Georgia wants the courts to adopt the legal fiction that Roe and Casey were never really law. Under Georgia Supreme Court precedent, courts cannot oblige. The LIFE Act was "void at birth," so it cannot "somehow spring to life because of a change in constitutional exegesis coming from a higher court."…
In that sense, the void ab initio doctrine is a tool of accountability. Lawmakers cannot evade responsibility for their votes by enacting an unconstitutional law on the hunch that, at some point in the future, five justices will change the meaning of the Constitution. McBurney's ruling is not "judicial supremacy run amok," as Georgia lawyers complained. It is a straightforward requirement that the legislature's acts comply with the Constitution that exists at that moment rather than the Constitution it hopes will exist in the future…
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