This morning, the Supreme Court issued its ruling in Dobbs vs. Jackson Whole Women’s Health, voting 6-3 to overturn Roe v. Wade, the 1973 case that established a constitutional right to abortion. According to their ruling—which was widely expected to upend decades of precedent after Politico published a leaked draft opinion in early May—states now have the right to ban abortion for any reason, with or without exceptions for circumstances like rape and incest.
The ruling’s impact is already cascading across the country. In some states, like Kentucky and Louisiana, abortion was outlawed within hours of the Supreme Court’s ruling, due to so-called “trigger bans” that were drafted to go into effect if and when Roe was overturned.
In Georgia, abortion is still legal up to 20 weeks after conception: HB 481, the 6-week abortion ban, passed in 2019 by the Republican-led Georgia Assembly, has been tangled up in the courts since Governor Brian Kemp signed it into law. It’s currently in the 11th Circuit Court of Appeals, which decided to wait on a final ruling until Dobbs was decided. Until then, abortion remains legal in Georgia, but the 11th Circuit is widely expected to lift the stay in the coming days or weeks. [Editor’s note: On July 20, the 11th U.S. Circuit Court of Appeals ruled that Georgia’s 6-week abortion ban should be allowed to take effect. A stay issued by the court means that the law is now in effect.]
Here’s what to know about access to abortion care in Georgia in the wake of today’s ruling.
What happens next with Georgia’s 6-week abortion ban?
When it passed in 2019, HB 481—which bans abortions at about 6 weeks from conception—was a violation of the constitutional protections established in Roe v. Wade. A team of abortion rights activists and civil liberties groups sued the state over the law, and in 2020, a federal judge blocked it from going into effect. The state appealed to the 11th Circuit of Appeals, which upheld a stay until the Supreme Court decided Dobbs v. Jackson, since that ruling would likely impact the legality of Georgia’s ban.
Now that Dobbs has formally overturned Roe, the 11th Circuit is free to lift its ban, which it is almost certain to do, citing the new precedent established in today’s ruling. But it won’t happen overnight, says Andrea Young, executive director of the ACLU of Georgia, which is one of the groups suing the state in SisterSong v. Kemp. Until then, abortion is still legal in the state.
“We expect a hearing in the 11th Circuit, and we expect the current governor and attorney general to push to lift the stay,” Young said. “We think this process should take several weeks.” In the meantime, she adds, “We are also exploring other grounds to challenge the law.” Young explained that the language of HB 481 is vague and includes some novel provisions, which may provide avenues for new litigation.
As expected, Attorney General Chris Carr sent a letter to the 11th Circuit Clerk of Court this afternoon, requesting that the three-judge court lift the ban on HB 481: “There is, simply put, nothing left of the Plaintiff-Appellees’ argument that Georgia law imposes an unconstitutional burden on the practice of abortion,” Carr wrote.
We still don’t know when the 11th Circuit will do so: In a request for comment, Kate Adams, attorney advisor for the Circuit Executive’s Office, said, “We cannot comment on the Court’s schedule.”
What does Georgia’s HB 481, a.k.a. the “heartbeat bill,” do?
When it does pass, the new law will prohibit abortions once trace cardiac activity can be detected, generally around six weeks, often before a person knows they’re pregnant. It’s sometimes referred to as the “fetal heartbeat bill,” but medical experts say that terminology is misleading, since the ultrasound detects embryonic cells with faint electrical activity, not a heartbeat.
The law provides exceptions for cases of rape or incest (provided a police report is filed), or in cases of medical emergency, or when a pregnancy is deemed “medically futile.”
Some of the law’s provisions are so vague or novel that it’s unclear how they will play out once the law is in effect. “I imagine we’re looking at a pretty murky legal future because of the way the abortion bill is phrased,” said 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.
“It’s unclear if there will be punishment for women seeking abortion,” she said, “Or for doctors who are providing them.”
One very murky provision of the new law is the establishment of “fetal personhood.” The bill states that “’natural person’” means any human being including an unborn child.” Such language marks a new frontier in the fight over reproductive rights, and it’s not at all clear how it will play out in the real world. In Georgia, expectant parents can claim the fetus as a dependent on tax forms, which will cost the state millions of dollars in lost tax revenue, though the state never estimated the full cost.
Fetal personhood—which was until a recently a fringe idea at the margins of the abortion debate—opens up a whole new territory surrounding the criminalization of pregnancy and how the state could treat miscarriages or stillbirths, including those that occur in wanted pregnancies. That scenario has many people worried, but it’s too soon to say how the courts will treat these fetal personhood provisions, said Lauren Sudeall, associate professor of law and director of the Center for Access to Justice at Georgia State University School of Law.
“The Supreme Court has (so far) said, We are not reaching this question of personhood,” Sudeall explained, and the Constitution doesn’t say anything either way. Now that Roe has been overturned, however, “it’s an open question.”
What is the future of legal abortion in Georgia?
Once HB 481 is implemented, it will drastically transform abortion access in Georgia for the immediate future. In a statement about the overturning of Roe’s, Governor Kemp said, “Today’s landmark ruling is a historic victory for life. I . . . hope our law will be fully implemented.” And, should Kemp win reelection in November, he could push for a total abortion ban during the next legislative session, though he hasn’t said definitively whether he plans to do so.
But pro-choice supporters say they’re not giving up the fight. A 2019 11Alive poll found that 42 percent of Georgians oppose HB 481, and an AJC poll this past May found that 68 percent of Georgians wanted to keep Roe intact.
In the wake of the ruling, local abortion providers said they would continue their work: “Our doors are open,” Planned Parenthood Southeast Advocates tweeted. Likewise, Atlanta’s Feminist Women’s Health Center said they are “not going anywhere,” with Executive Director Kwajelyn Jackson writing in an Instagram post, “Now, more than ever, we will continue to provide abortion care for our community with love and compassion.”
Some District Attorneys announced that they will not prosecute people under anti-abortion law: “Law enforcement and prosecutors should not be thrust into this health space, regardless of the legislation on the books,” DeKalb County District Attorney Sherry Boston announced in a statement this afternoon. Fulton DA Fani Willis announced the same.
In Atlanta, city officials have signaled their own opposition to HB 481’s imminent implementation. On Tuesday, before the ruling, Atlanta City Council unanimously passed a resolution, sponsored by Councilmember Liliana Bakhtiari, which instructs the Atlanta Police Department to treat violations of the abortion law as the lowest priority. The resolution goes to Mayor Andre Dickens, whose office routinely sets such priority lists for the APD. Earlier this week, Mayor Dickens said he supported the resolution, which also banned city funds from being used to collect data on or prosecution of anyone seeking an abortion.
“I’m doing this to protect lives—that’s my job as a public servant,” Bakhtiari told Atlanta. “This [law] will further penalize communities of color and low-income communities.”
Abortion advocates in Georgia say there may be another route to challenging HB 481 in court: Georgia’s own state constitution, which contains robust protections for privacy, the foundation of the right to abortion found in Roe. Last month, Jen Jordan, the Democratic nominee for state Attorney General, told WABE that if she wins in November, she’ll challenge the law in state courts.