What’s the future of legal abortion in Georgia?


What’s the future of legal abortion in Georgia?
Demonstrators rally in support of women’s reproductive rights at the Georgia State Capitol on October 2, 2021.

Photograph by Megan Varner/Getty Images

When Governor Brian Kemp signed Georgia’s “fetal heartbeat” bill into law in May 2019, it was the most stringent abortion restriction in the U.S. It has yet to see daylight: That law, like others passed by Republican-led legislatures around the country in recent years, was blocked for violating Roe v. Wade, the 1973 U.S. Supreme Court decision affirming a constitutional right to abortion.

But now, the future of Roe itself is uncertain: A Mississippi ban on most abortions past the 15th week of pregnancy awaits a ruling with big implications from the conservative-leaning U.S. Supreme Court. And Texas’s so-called “bounty hunter” law, enacted in 2021, has abortion opponents in Georgia contemplating a similar model here at home.

Meanwhile, Georgia providers perform more than 30,000 abortions every year. Here’s what threats to abortion access nationwide could mean in the state.

What’s going on with Georgia’s “heartbeat” bill?
In response to a lawsuit on behalf of abortion providers and advocates, a federal judge blocked the law from going into effect, prompting an appeal from Governor Kemp. The controversial legislation aims to ban most abortions once fetal cardiac activity can be detected—typically around six weeks—and confers “personhood” status on fetuses once they reach that stage. Medical experts, including the president of the American College of Obstetricians and Gynecologists, call the “heartbeat” framing misleading, since what’s detected is really a group of cells with electrical activity.

In September, the 11th Circuit Court of Appeals heard oral arguments in the case—but, rather than issue a decision, the three-judge panel opted to uphold the block and wait for the Supreme Court’s ruling in the Mississippi case, Dobbs v. Jackson Women’s Health Organization. That decision, expected this summer, could reshape the landscape of reproductive rights across the country.

How could Dobbs change things?
There are many possible outcomes, up to and including the overturning of Roe v. Wade. Even without explicit language dismantling Roe, the justices could weaken its provisions—for instance, by amending how far into a pregnancy abortion is protected (Roe currently allows for abortions until “viability,” a somewhat slippery benchmark that’s generally pinned at around 24 weeks from conception).

Georgia’s law differs from Mississippi’s, so the impact of Dobbs won’t be immediately clear here. But the Guttmacher Institute, which tracks abortion legislation nationwide, counts Georgia among the 26 states certain or likely to quickly ban abortion in the wake of a reversal on Roe.

What about the Texas law?
Meanwhile, Georgia’s Republican lawmakers are considering modeling a new abortion restriction in the mold of Texas, where GOP legislators crafted a bill that deputizes citizens to enforce a ban on abortion in return for a minimum $10,000 bounty. That legal workaround aims to achieve the same goal as Georgia’s heartbeat law—a ban on abortion after six weeks—so antiabortion activists here are calling for a homegrown version of the Texas bill to serve as a “stop-gap” measure while Georgia’s is stuck in court. But the Texas law is facing a host of legal challenges, so the fate of bounty-style restrictions remains to be seen.

What happens to abortion access in Georgia if Roe is overturned?
“These laws are not going to stop women from getting abortions,” says Dr. Lauren MacIvor Thompson, assistant professor at Kennesaw State University and a faculty research fellow at Georgia State University’s Center for Law, Health and Society. They’ll just make them harder to obtain—particularly for low-income people. Thompson foresees a return to historical systems of mutual aid, like Jane, the underground abortion network that sprang up in Chicago in the 1960s. While Georgians who can afford them will seek out-of-state abortions, abortion pills—which can be used up to about 10 weeks—offer an affordable alternative. As Thompson explains: “I think you’ll see a huge rise in medication abortions, with medications sent to you in the mail. That’s already happening.”

Is there a future for legal abortion in Georgia after Roe v. Wade?
Possibly. A handful of states supportive of abortion rights have passed legislation protecting access to the procedure, and more will likely do so in the absence of Roe’s federal protections. A few, including Kansas and Iowa, have even established a right to an abortion stemming from their state constitution. That’s a long shot in Georgia, where both the legislature and the state Supreme Court lean conservative, but big demographic shifts could change the political calculus in coming years.

At the federal level, some scholars believe the Equal Rights Amendment—the long-stalled constitutional amendment prohibiting sex and gender discrimination, which is tantalizingly close to being ratified in Congress—could provide a different framework for abortion access, away from the influence of an increasingly hostile judicial branch. The ERA, Thompson says, “would provide a much more supportive and inclusive framing for fighting for reproductive rights.”

This article appears in our January 2022 issue.





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