ACLU of Georgia

What happens to Georgia’s heartbeat law now that Roe v. Wade has been overturned?

Jonathan Raymond | 11Alive | June 24, 2022

Georgia has its own restrictive abortion law, that bans abortions when a “fetal” heartbeat can be detected – at about six weeks into a pregnancy.

 

ATLANTA — The Supreme Court has released its ruling in a Mississippi challenge to abortion rights, ruling in favor of the state and overturning the precedent of Roe v. Wade.

 

The decision has wide-ranging implications, with many states having enacted so-called “trigger” laws that were designed to take effect as soon as such a Supreme Court ruling was issued.

 

Georgia has its own restrictive abortion law, that bans abortions when a “fetal” heartbeat can be detected – at about six weeks into a pregnancy.

 

Unlike the states with “trigger” laws, though, Georgia’s was already passed and signed by Gov. Brian Kemp and then suspended by federal courts as unconstitutional.

 

Now, with the Supreme Court precedent overturned, the 11th Circuit Court of Appeals in Atlanta would be set to let the law go into effect. Here’s why:

 

What happens in Georgia now that Roe v. Wade has been overturned?

 

The law is still currently not in effect, after a federal court struck it down in 2020.

 

The ruling was then appealed to the 11th Circuit, which heard arguments on the law last September.

 

At that time, the Appeals Court decided to essentially put the matter on hold and wait to see what the Supreme Court did with the case it just ruled on — Dobbs v. Jackson Women’s Health Organization.

 

Unlike in the states with the “trigger” laws, Georgia’s law technically remains suspended, at least for now, even after the Supreme Court ruling.

 

However, now the 11th Circuit is all but certain to act to overrule the federal court decision that determined Georgia’s law was unconstitutional under the old, now-overturned Roe precedent.

 

Then what happens?

 

The law will take effect. It was passed by the legislature and signed by Gov. Kemp in 2019, and without a court ruling holding it back, it would become the standing law of the state of Georgia.

 

Is that the end of it?

 

Probably not. With Roe v. Wade completely overturned, it’s possible Gov. Kemp could call a special session of the state legislature, the Georgia General Assembly, to write an even stricter abortion ban.

 

Currently the law is designed to halt abortions at roughly six weeks – when a “fetal heartbeat” can be detected. State lawmakers, with the go-ahead from the Supreme Court ruling, may decide to go even farther.

 

However, Georgia legislators are not commenting yet if they would try to pass a total abortion ban in the state.

 

“There’s a real question whether there will be a requirement, constitutionally speaking, to have exceptions for victims of rape, victims of incest, you know, moments where a woman’s life is in danger,” Georgia State University Law Professor Anthony Michael Kreis said back in May. “These are somewhat open questions, still… Will Georgia legislators want to ban every, single kind of abortion possible in the state? Will they want exceptions?”

 

The governor could also decline to call a special session, leaving the matter to the next legislative session next year.

 

The matter will be a highly political one – Kemp will almost certainly face calls from some state Republicans to call a special session to go farther than the current law in outlawing abortion.

 

However, the law sparked a huge economic backlash in 2019 – including at least some boycott efforts from the film industry – and the governor could potentially be in an uncomfortable position with the business community if he accommodates a push to go even farther on abortion.

 

Kemp takes special pride in his management of the economy and Georgia’s long-running status as the “Top State for Doing Business.” Going all-in on outlawing abortion could greatly damage that – and, facing a battle with Stacey Abrams for independent and moderate voters in “purple Georgia,” he may be particularly reluctant to do any more with the issue.

 

The other side of the coin is that he could see it as an issue to fire up Georgia conservatives and lock in a Trump-voting base that still has some lingering discontent with him over the 2020 election.

 

Recently, a spokesperson for Gov. Kemp released a statement on his behalf, saying:

 

“Georgia is a state that values life at all stages. Governor Kemp led the fight to pass the strongest pro-life bill in the country and championed the law throughout a lengthy legal process. We look forward to the Court issuing its final ruling, however, this unprecedented breach of U.S Supreme Court protocol is deeply concerning.”

 

Meanwhile, earlier this year ACLU-Georgia Attorney Sean Young said that he could explore the possibility of trying to ask the lower court in Atlanta to continue blocking Georgia’s law.

 

“The 11th Circuit Court of Appeals may give the parties an opportunity to submit briefs explaining how the Supreme Court’s decision impacts our pending case on Georgia’s abortion ban,” Young said. “If the 11th Circuit decides that the Supreme Court’s ruling means that Georgia’s abortion ban is constitutional, the 11th Circuit will issue that ruling, putting that into effect.”

 

Kreis added that the ruling could lead to state legislatures banning other types of private conduct as well.

 

“The right to an abortion is grounded in a right to privacy,” he explained, “and that right to privacy implicates many other rights. It implicates the right to contraception access. It implicates the right to same sex intimacy, and implicates the right to marry. I think while we might talk about this is just being an issue with abortion or just being an issue with the current Georgia abortion law, I think we’re in for a wild ride where there’s going to be a lot of legislation, a lot of litigation going forward. So there’s going to be many more questions in Georgia and Georgia politics in the coming weeks and months than there are answers right now.”

 

This is a developing story. Check back often for new information.