ACLU of Georgia

Focus is on Georgia’s anti-abortion law after draft of high court ruling is leaked

Maya T. Prabhu and Bill Rankin | The Atlanta Journal-Constitution | May 4, 2022

Abortion is still legal in Georgia.

 

That was the message from the state’s abortion providers the day after a leaked draft of a U.S. Supreme Court ruling released by Politico indicated the high court was planning to overturn Roe v. Wade, the 1973 case that guaranteed the right to an abortion nationwide. “The reproductive health rights and justice movement has been prepping for all possible scenarios,” said Kwajelyn Jackson, executive director of the Feminist Women’s Health Center, an abortion clinic. “Abortion providers in the state continue to provide compassionate care, along with comprehensive reproductive health care, across all of the needs that people have in our communities.

 

“We absolutely are still providing abortions today, the same way we have been. Nothing has changed in our business model,” Jackson said.

 

The Feminist Women’s Health Center and other abortion providers sued the state in 2019 after the Legislature passed a restrictive abortion law outlawing the procedure in most cases once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many women know they are pregnant.

 

A challenge to Georgia’s law is now pending before a three-judge panel of the federal appeals court in Atlanta. In September, the panel put the case on hold, deciding to wait for the U.S. Supreme Court’s ruling in Dobbs v. Mississippi.

 

If the draft opinion leaked Monday night becomes the high court’s ultimate decision, it is just a matter of time before Georgia’s law is upheld, said Anthony Michael Kreis, a Georgia State University law professor specializing in constitutional law.

 

“I would think it will be somewhat akin to the Supreme Court’s same-sex marriage decision in 2015,” Kreis said. “It was only a matter of hours, not days, before the holdout states began issuing marriage licenses to same-sex couples. I think the same will be true to abortions here in Georgia.”

Either the 11th U.S. Circuit Court of Appeals could uphold Georgia’s anti-abortion law or the three-judge panel could quickly return the case to U.S. District Judge Steve Jones in Atlanta with instructions that he do so, Kreis said.

 

In July 2020, Jones struck down the Georgia law, leading to the appeal before the 11th Circuit. Jones found the law violated a women’s right to abortion as established by the precedent set in Roe v. Wade, which in all likelihood is about to be overturned.

 

Sean Young, the legal director for the American Civil Liberties Union of Georgia, stressed that the abortion ban is still blocked. “The ACLU of Georgia will assess next steps as soon as possible after the Supreme Court issues its final decision,” said Young, who is representing abortion providers in the lawsuit against the state.

 

By overturning Roe v. Wade, the power to regulate abortions falls to the states.

 

Georgia’s law would allow abortions after a doctor detects fetal cardiac activity in cases of rape, incest, if the life of the woman is in danger or in instances of “medical futility,” when a fetus would not be able to survive after birth. To obtain an abortion after six weeks of pregnancy because of rape or incest, a woman would have to file a police report.

 

Under current Georgia law, passed by the Legislature in 2012, abortions are allowed through 20 weeks of gestation, or about 22 weeks of pregnancy.

 

Some anti-abortion advocates have suggested that Gov. Brian Kemp should call a special session to push the Legislature to enact stiffer regulations. But Kemp’s office said it was premature for the governor to make any decisions regarding a special session before a ruling is official.

 

“Gov. Kemp led the fight to pass the strongest pro-life bill in the country and championed the law throughout legal challenges,” Kemp spokeswoman Katie Byrd said. “We look forward to the court issuing its final ruling.”

 

Georgia’s law is different than other states’ statutes because it includes so-called “personhood” provisions, where rights are extended to an embryo once fetal cardiac activity can be detected. Parents would be able to claim a fetus, once a heartbeat is detected, on their state taxes as a dependent, and the measure would also require state officials to count an unborn child toward Georgia’s population. Mother’s can also file for child support once cardiac activity is detected.

 

It’s too soon to speculate about what comes next legislatively, said Kaleb McMichen, spokesman for Georgia House Speaker David Ralston.

“It would be premature to comment on this matter until the Supreme Court releases an official opinion,” he said.

 

Megan Gordon, a lobbyist with the Feminist Women’s Health Center, said abortion rights activists are bracing for Georgia legislation to further restrict the procedure. But, she said, many moderate Republicans voted in support of the restrictive legislation to appeal to their political base while expecting the U.S. Supreme Court to keep Roe v. Wade intact.

 

“It’s going to be the dog that caught the car, and they’re going to have to actually live in the world that they’ve been talking about for years,” she said.