If Roe V. Wade Draft Decision Holds, Stricter Abortion Laws in GA Could Prevail

Key Points
  • The decision is expected to be official in June with legal ramifications playing out over months afterward.
  • Court challenges against Georgia's 'heartbeat' abortion law will likely be dropped.
  • Pro-life advocates want to revive a failed attempt to ban mail delivery of abortion pills.

The Gist

Broad restrictions on abortions for Georgia women loom large after news broke on Monday that the U.S. Supreme Court is expected to overturn Roe v. Wade, the landmark 1973 ruling guaranteeing nationwide access to abortion.

What’s Happening

A leaked, draft majority opinion from the court overturning Roe v. Wade was reported by the news outlet POLITICO late Monday night, sparking intense reaction across the country from advocates both for and against abortion  – and especially in Georgia.

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” wrote Associate Supreme Court Justice Samuel Alito, according to the leaked draft opinion. The court on Tuesday confirmed the document as authentic in a statement.

If the Supreme Court votes to overturn Roe v. Wade, odds are all but certain that Georgia’s abortion law – passed in 2019 as the “fetal heartbeat bill” – will take effect.

Georgia law currently allows abortions up to 20 weeks after conception. Roughly 317,000 abortions were performed in the state between 2010 and 2020, averaging around 28,000 abortions annually during that time, according to state health data.

The state’s Republican-led legislation passed and signed in 2019 would ban abortions after a fetus has a “detectable human heartbeat” – defined at six weeks into pregnancy. The ban would not apply to mothers at risk of dying from pregnancy, unborn babies declared medically incapable of surviving, and police-documented cases of rape or incest. In those cases, abortions are still allowed up to 20 weeks into pregnancy.

The 2019 bill, sponsored by state Rep. Ed Setzler (R-Acworth) and titled the “Living Infants Fairness and Equality Act,” sparked fierce debate in the General Assembly, passed on party lines and fulfilled a campaign pledge from Gov. Brian Kemp, a Republican with three daughters.

It was blocked in October 2019 after several pro-abortion groups – including Planned Parenthood and the Atlanta-based nonprofit SisterSong Women of Color Reproductive Justice Collective – sued in federal court to stop the ban from taking effect.

Why It Matters

SisterSong’s executive director, Monica Simpson, stressed Georgia minority and low-income communities would be most harmed by the abortion ban. State data shows roughly 20,600 abortions were performed on Black women in Georgia in 2020, more than triple the nearly 6,200 abortions performed on white women. 

Simpson also said banning abortions could worsen Georgia’s maternal mortality rate, which is among the highest in the U.S. – particularly for Black women, who are three to four times more at risk of dying from complications due to pregnancy and childbirth than white women, a 2019 General Assembly study found. 

“We’re creating a very dire situation for those who get pregnant in this state,” Simpson said. “It sends a very clear message that this country is sending us back to a day when our bodies were extremely compromised.”

Supporters of Georgia’s abortion ban called the high court’s potential decision long overdue, hailing it as a legal outcome that lets each state decide whether to allow abortions.

“This draft opinion, if accurate, would simply – and rightly – empower states to protect life without the stranglehold of the Roe decision restricting them,” Martha Zoller, executive director of the Georgia Life Alliance, said on the organization’s Facebook page today. “This decision would finally rectify that grave error.”

News of the draft opinion has also stirred speculation that Republican state lawmakers could move to restrict abortion practices even further than the 2019 bill proposing a ban on abortions after six weeks. 

Zoller told State Affairs that her group supports a bill to ban the mailing of abortion pills that cleared the state Senate earlier this year but stalled in the state House of Representatives. “We don't see it as restricting but making safer a process that was impacted by Covid-19 changes,” she said.

What’s Next

Georgia’s abortion ban would not take immediate effect if the U.S. Supreme Court overturns Roe v Wade, said Sean Young, the state legal director of the American Civil Liberties Union’s (ACLU) Georgia chapter, which is representing SisterSong.

If Roe is overturned, Young said Judge William Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit – where the case is currently being considered – would likely ask the ACLU and state legal officials to send in briefs presenting their post-Supreme Court decision arguments.

After that, the timing for when Georgia’s abortion ban could take effect is up in the air, Young said. “It could take days or weeks, or longer,” he said. “I just don’t know. But Georgia’s abortion ban will remain blocked unless the appeals court says otherwise.”

The first draft opinion of the Supreme Court that was leaked to POLITICO would likely undergo changes and additional drafts. The Supreme Court’s decision will not be final until it is published later this year. 

Anthony Michael Kreis, a constitutional law professor at Georgia State University, said he expects Georgia’s abortion ban would take effect “almost immediately” if Roe v. Wade is overturned. 

Georgia Attorney General Chris Carr, a Republican running for re-election this year, whose office is defending the abortion ban in court, declined to comment on next steps until the Supreme Court gives a final ruling. 

“In the meantime, we will continue to vigorously defend Georgia’s Heartbeat Bill in federal court,” said Carr’s spokeswoman, Kara Richardson.

A spokesman for Georgia House Speaker David Ralston (R-Blue Ridge) declined to comment on whether state House leaders would push tougher restrictions, saying “it would be premature to comment on this matter until the Supreme Court releases an official opinion.”

Georgia Senate Majority Leader Mike Dugan’s (R-Carrollton) office did not immediately respond to a request for comment.

Join the Conversation

What do you want to know about the future of abortion access in Georgia? Contact reporters Beau Evans: [email protected] and Alessandro Marazzi Sassoon: [email protected]