ATLANTA — A draft opinion reported by Politico on Monday night indicates the U.S. Supreme Court will some time this summer overturn the constitutional guarantee of abortion rights established with Roe v. Wade.
The draft opinion is not finalized, and the Court could alter either the opinion or even its decision before it releases its final rulings - which is expected in a matter of the next two months, according to Politico.
Chief Justice John Roberts said Tuesday the draft "does not represent a decision by the Court or the final position of any member on the issues in the case."
However, the existence of the opinion very strongly indicates the Court is - or at least at one point was - in line to formally overturn Roe.
If that happens, several states would be poised to institute varying degrees of abortion bans, including Georgia.
Here's where Georgia's "heartbeat" abortion law currently stands, and what would be likely to happen if the Supreme Court issues a ruling nullifying Roe v. Wade:
Where is the Georgia abortion law currently at?
The law is currently not in effect, after a federal court struck it down in 2020.
The ruling was then appealed to the 11th Circuit Court of Appeals, in Atlanta, which heard arguments on the law last September.
At that time, the Appeals Court decided to essentially put the matter on hold and wait to see what the Supreme Court did with the case it will soon rule on - Dobbs v. Jackson Women's Health Organization.
Unlike states with so-called "trigger laws" - laws that would go into effect only in the event Roe v. Wade is overturned - Georgia's law would technically remain suspended, at least momentarily, even after a Supreme Court ruling overturning Roe.
However, at that point the 11th Circuit would very quickly overrule the federal court decision that ruled the Georgia law unconstitutional based on what the new Supreme Court precedent would be.
Then what happens?
The law would be in effect. It was passed by the legislature and signed by Gov. Brian Kemp in 2019, and without a court ruling holding it back, it would become the standing law of the state of Georgia.
Is that the end of it?
Probably not. With Roe v. Wade completely overturned, it's possible Gov. Kemp could call a special session of the state legislature, the Georgia General Assembly, to write an even stricter abortion ban.
Currently the law is designed to halt abortions at roughly six weeks - when a "fetal heartbeat" can be detected. State lawmakers, with the go-ahead from the Supreme Court ruling, may decide to go even farther.
However, Georgia legislators are not commenting yet if they would try to pass a total abortion ban in the state.
“There's a real question whether there will be a requirement, constitutionally speaking, to have exceptions for victims of rape, victims of incest, you know, moments where a woman's life is in danger,” Georgia State University Law Professor Anthony Michael Kreis said. “These are somewhat open questions, still. But it seems like, given the tenor of the draft that was revealed last night (Monday night), that there will be no constitutional requirements in terms of any exceptions. So I think that's the real question. Will Georgia legislators want to ban every, single kind of abortion possible in the state? Will they want exceptions?"
The governor could also decline to call a special session, leaving the matter to the next legislative session next year.
The matter will be a highly political one - Kemp will almost certainly face calls from some state Republicans to call a special session to go farther than the current law in outlawing abortion.
However, the law sparked a huge economic backlash in 2019 - including at least some boycott efforts from the film industry - and the governor, should he emerge from the GOP primary as the party's gubernatorial nominee, would potentially be in an uncomfortable position with the business community if he accommodates a push to go even farther on abortion.
Kemp takes special pride in his management of the economy and Georgia's long-running status as the "Top State for Doing Business." Going all-in on outlawing abortion could greatly damage that - and, facing a battle with Stacey Abrams for independent and moderate voters in "purple Georgia," he may be particularly reluctant to do any more with the issue.
The other side of the coin is that he could see it as an issue to fire up Georgia conservatives and lock in a Trump-voting base that still has some lingering discontent with him over the 2020 election.
There's also the chance he loses the primary and, free of any campaign considerations, feels comfortable accommodating a demand for a special session from conservatives.
Recently, a spokesperson for Gov. Kemp released a statement on his behalf, saying:
“Georgia is a state that values life at all stages. Governor Kemp led the fight to pass the strongest pro-life bill in the country and championed the law throughout a lengthy legal process. We look forward to the Court issuing its final ruling, however, this unprecedented breach of U.S Supreme Court protocol is deeply concerning.”
Meanwhile, ACLU-Georgia Attorney Sean Young said Tuesday that, depending on the details of the Supreme Court ruling, he may try to ask the lower court in Atlanta to continue blocking Georgia’s law.
“The 11th Circuit Court of Appeals may give the parties an opportunity to submit briefs explaining how the Supreme Court's decision impacts our pending case on Georgia's abortion ban,” Young said. “If the 11th Circuit decides that the Supreme Court's ruling means that Georgia's abortion ban is constitutional, the 11th Circuit will issue that ruling, putting that into effect.”
Young said, for now though, nothing has changed in Georgia.
“Georgia's ban on abortion remains blocked by the courts,” he said. “In 2019, the Georgia legislature passed the abortion ban and it only passed by two votes in the Georgia House of Representatives. The ACLU of Georgia sued and successfully blocked that abortion ban in court, and it remains blocked today. If Roe were to be overturned, that could put that block in jeopardy. Over time, if Roe were overturned, people across Georgia would be deprived of their right to decide for themselves when to start or expand their own families.”
It's too soon to say, of course, but if the Supreme Court goes forward with overturning Roe it's guaranteed to knock over several dominoes in Georgia.
Kreis added that the ruling could lead to state legislatures banning other types of private conduct as well.
“The right to an abortion is grounded in a right to privacy,” he explained, “and that right to privacy implicates many other rights. It implicates the right to contraception access. It implicates the right to same sex intimacy, and implicates the right to marry. I think while we might talk about this is just being an issue with abortion or just being an issue with the current Georgia abortion law, I think we're in for a wild ride where there's going to be a lot of legislation, a lot of litigation going forward. So there's going to be many more questions in Georgia and Georgia politics in the coming weeks and months than there are answers right now. I think if the Supreme Court opens the door to that kind of legislation, you may see a flurry of legislation that goes well beyond abortion.”