What happens to abortion in Georgia if the U.S. Supreme Court overturns Roe v. Wade?

1. Does Georgia have a trigger law?

Not really. Georgia is not one of the 13 states with so-called “trigger laws,” that would ban all or most abortions pretty much right away if the United States Supreme Court issues a ruling overturning Roe v. Wade. But Georgia’s 2019 law HB 481 banning abortions after six weeks, currently held up in court,  is poised to take effect soon if Roe falls. Even though it’s not a trigger law, there would no longer be a constitutional obstacle preventing Georgia’s law from going into effect, according to WABE legal analyst Page Pate.

“There would be no need for additional hearings, no need for additional arguments or briefing. Presuming that the Supreme Court’s decision is consistent with what we saw in the leaked opinion. Georgia’s law would basically go into effect immediately unless there was another new legal challenge that would have to be decided by another court,” he says.

2. What happens legally in Georgia if the Supreme Court overturns Roe?

The 11th Circuit Court of Appeals has already heard oral arguments on HB 481 but a final ruling is on hold, awaiting the Supreme Court’s decision on Roe. So,  if the Supreme Court rules that there is no longer a federal guarantee of access to abortion, the 11th Circuit would clear the way for Georgia’s law to take effect. If that happens, it could also open the door to further legal challenges based on the Georgia Constitution, including on privacy grounds. The basis for Roe on the federal level was a presumed constitutional right to privacy based on earlier Supreme Court decisions, including the basic right to contraception, says Pate.

“And there’s a very old Georgia Supreme Court case that says, yes, there is a constitutional right to privacy. And, yes, it does basically mean that people are protected from government overreach in many different ways. It did not specifically address abortion, but the argument could be made that even if the Supreme Court thinks there’s no constitutional right to abortion under the United States Constitution, our state Supreme Court could say there is such a right und er the Georgia Constitution,” says Pate.

If Roe is overturned and the 11th Circuit allows Georgia’s law to take effect, any new legal challenge would be heard in state court.

3. What happens with abortion services if the Supreme Court overturns Roe?

Under current law, abortion is legal up to around 20 weeks of pregnancy. And abortion would remain available in Georgia until the 11th Circuit Court of Appeals allows Georgia’s six-week ban to take effect. This could happen within days or weeks. But Pate says there is likely going to be a chilling effect if the Supreme Court overturns Roe. District Attorneys across Georgia would be responsible for enforcing the law.

“So all of a sudden, the prosecution of criminal cases in Georgia could become very, very political and very, very inconsistent. And that is problematic,” Pate says, “on the individual discretion of DA’s and law enforcement — it doesn’t even have to reach the level of the District Attorney. I mean, what if I’m just a sheriff in some county in rural Georgia who just really doesn’t like the idea of abortion? And I just want to do this. Can I go get a search warrant to go into the doctor’s office and look through records? Yeah, I can under Georgia law now. So  it lends itself to very inconsistent and arbitrary enforcement for a very serious crime.”

4. What’s actually in Georgia’s abortion law HB 481?

The law bans abortion once cardiac activity in the womb can be detected, which can occur as early as six weeks into a pregnancy, and before many women know they’re pregnant. It allows exceptions for miscarriage and ectopic pregnancy, and for pregnancies a doctor deems “medically futile.” It allows exceptions for cases of rape and incest — only if the woman files a police report first. 

The law includes a provision to grant “personhood” to an embryo, giving it the same legal rights as people have after they are born. And while the law primarily holds health providers responsible for an abortion deemed unauthorized, Pate says the personhood concept raises important questions state officials will have to consider when it comes to enforcing this aspect of the law.

“If I’m in Forsyth County and I want to drive to DeKalb to get an abortion, well, if my local law enforcement finds out about that, can I be charged with conspiracy to commit murder? If my husband drives me there,” Pate says, “can he be charged as a party to the crime of murder? It presents all kinds of disturbing potentialities.”

5. Georgia district attorneys could enforce Georgia’s abortion ban differently.

Because of the way government is structured in Georgia, the abortion law could be enforced in different ways in different parts of the state, depending on each individual district attorney.

“Each district attorney in this state, they don’t answer to the attorney general. They don’t answer to the governor. They are separate constitutional officers and they have the exclusive determination on who gets prosecuted in their judicial district,” Pate says. “And so if you have a district attorney, and I think Sherry Boston in DeKalb has been very public about this, who says, ‘Look, I don’t agree with this law, so I’m not going to prosecute women for seeking an abortion,’ there’s not a single thing that can be done other than electing a new DA to change that, where in another circuit, say, up in far northwest Georgia, you have a DA who says, not only am I going to prosecute women who seek an abortion, I’m going to prosecute their family members if they drive her out of state to seek an abortion as being a party to the crime of murder.”

Varying levels of enforcement of the abortion ban could create a patchwork system of abortion access across the state.