by Jill Nolin, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
May 4, 2022
A leaked draft of the U.S. Supreme Court’s highly anticipated ruling on abortion rights suggests the nation’s highest court could soon overturn Roe v. Wade and unleash states like Georgia to severely restrict access to the procedure.
The unofficial ruling, which was obtained by Politico, became public a couple months before a decision was expected, immediately jolting Georgia politics as early voting starts for this year’s primary election.
If the final decision mirrors the draft, it will likely lead to Georgia’s restrictive anti-abortion law eventually taking effect. The 2019 law is temporarily held up in the courts pending the Supreme Court’s decision. Several states have so-called trigger laws in place, but not Georgia.
But several GOP candidates for statewide office said Tuesday that a ban on most abortions once fetal cardiac activity is detected – usually at about six weeks into a pregnancy, before many women know they are pregnant – doesn’t go far enough.
Former Republican U.S. Sen. David Perdue, who is challenging Gov. Brian Kemp, said if he were elected governor, he would call a special session “to ban abortion in Georgia.” All four GOP candidates for lieutenant governor said Tuesday they support a complete ban on the procedure.
“I don’t think it’s any doubt that Georgia will quickly move to try to outright ban abortions,” state Rep. Erick Allen, a Smyrna Democrat who is running for lieutenant governor, said during an Atlanta Press Club debate Tuesday. “This is not a hypothetical. I think we are in a moment where we have to start resetting the battlefield of what is next after Roe is gone.”
A blanket ban could be just over the horizon, says Georgia State University constitutional law professor Anthony Michael Kreis.
“As the draft opinion stands, barring some kind of modification in the deliberative process, there’s really nothing restricting Georgia from outright banning abortions,” Kreis said.
What’s next for Georgia’s 2019 law?
Republican leaders like Kemp who pushed through Georgia’s anti-abortion bill stopped short of celebrating the news Tuesday.
“Under my leadership, Georgia will remain a state that values life at all stages, and as we anticipate the U.S. Supreme Court’s decision, Georgians should rest assured that I will continue to fight for the strongest pro-life law in the country,” Kemp said on Twitter, adding his support for the court’s planned investigation into the leak.
A spokeswoman for Attorney General Chris Carr, who is defending the state’s 2019 law in court, said Carr’s office would reserve comment until the official decision is released this summer. “In the meantime, we will continue to vigorously defend Georgia’s Heartbeat Bill in federal court,” spokeswoman Kara Richardson said.
The draft opinion triggered plenty of concern among activists who stressed this is not the court’s final order and that abortion services are still legal and available in Georgia up to 20 weeks into a pregnancy.
“Georgia’s ban on abortion remains blocked in the courts and abortions are still safe and legal in the state,” said Sean J. Young, who is the legal director for the ACLU of Georgia, which is representing health care providers who have challenged the state’s law. “The ACLU of Georgia will assess next steps as soon as possible after the Supreme Court issues its final decision.”
Kwajelyn J. Jackson, executive director of Atlanta’s Feminist Women’s Health Care Center, which is one of the plaintiffs in the case, said much still hinges on the official ruling – and then what the U.S. Court of Appeals for the 11th Circuit does with the ruling in Georgia’s case.
“Their decision about how to respond to the language in the Supreme Court decision will determine what happens, but I’m also confident that the state actors may try to move as quickly as possible to try to further erode abortion access in Georgia,” Jackson said.
“I am really hopeful that advocates and activists will continue to be able to fight against any further restrictions in Georgia, and that people who care about this issue will take this very seriously when they go to the polls.”
A proposal pushed by anti-abortion advocates that would have stopped women from accessing abortion medication like mifepristone through telemedicine cleared the state Senate this session but stalled in the House.
‘Losing is always a thing that activates people’
The legal impact in Georgia may take time to unfold, but the political ramifications were immediately felt. Democrat Stacey Abrams, who is running for governor, told the Atlanta Journal-Constitution she “will absolutely lean into and lead on that issue” on the campaign trail this year.
“As a woman, I am enraged by the continued assault on our right to control our bodies and our futures,” Abrams said in a statement. “As an American, I am appalled by the Supreme Court breach and its implications. As the next Governor of Georgia, I will defend the right to an abortion and fight for reproductive justice.”
Melita Easters, executive director of the Georgia’s WIN List PAC, which backs candidates who support abortion rights, said if the draft opinion becomes reality, it will raise the profile of races even farther down the ballot.
“If the court follows the draft opinion and returns decisions about reproductive freedom to the states, then every legislator elected this cycle will be crucial for decisions about future Georgia laws governing abortion and reproductive options available to women,” Easters said, noting how close the vote was on Georgia’s law in 2019.
But the long-term impact potentially overturning the 1973 landmark ruling will have on this year’s midterm election remains to be seen.
It’s important to note that the law will not change unless and until the Supreme Court officially rules, said Georgia State University political science professor Amy Steigerwalt.
“This isn’t the final decision, so how does it affect the elections in November, if for example, the court’s opinion doesn’t look like this or gets moderated?” she said. “I don’t entirely know the answer to that.”
But if the final opinion does overturn Roe v. Wade, it could prove the most galvanizing for the losing side, Steigerwalt said.
“In this particular instance, because what we’ll be seeing is, for lack of a better term, the pro-life position winning and the pro-choice position losing, losing is always the thing that activates people,” she said.
In some ways, a reversal of Roe v. Wade may mirror the effects of the original decision, Steigerwalt said.
“What a lot of people don’t know is that there was no pro-life movement prior to the 1973 decision of Roe v. Wade. It simply didn’t exist,” she said. “And it only really came about when all of a sudden, the court said that yes, there is this right to privacy, a right to an abortion. And sort of on the flip side, in many ways, the pro-choice movement lost a lot of steam because they had won. They were trying to just sort of protect what they had won, but the reality was they had won, that was the law of the land. And so in that sense, it is likely to be more motivating to those who are now feeling as though that they’ve lost.”
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