As Dobbs anniversary passes, fate of Georgia’s abortion law still in state Supreme Court hands
A year ago on Saturday, the U.S. Supreme Court issued a monumental ruling in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to an abortion and leaving it to states to place restrictions on the procedures.
In Georgia, the state’s 2019 anti-abortion law went into effect the following month, restricting abortions to the sixth week of pregnancy – before many women know they are pregnant – and allowing a few narrow exceptions for rape, incest and the health of the mother.
The number of abortion procedures predictably plummeted, from 4,150 in July to 1,850 in August, according to data from a Society of Family Planning’s report.
But the numbers have been trending upward since then with the post-Roe peak at 2,790 in March, the most recent month for which data is available.
Kwajelyn Jackson, executive director at the Feminist Women’s Health Center in Atlanta, which is one of the plaintiffs in the lawsuit challenging Georgia’s law, said those statistics hold true for the center’s clinic. The number of patients seeking abortion crept up over the end of 2022 and the first half of 2023 as women adapt to life under the new law, taking regular pregnancy tests as a precaution or more closely monitoring their health.
“What that tells me is that more patients are acting quickly in order to try to get care within the time frame of that six-week restriction,” she said. “So we know that many of our patients are coming at the very first positive pregnancy test, and we’re continuing to see patients travel from total-ban states around us that have no clinics and no exceptions. If they are early enough in their pregnancy, they are still trying to come to Georgia, if possible.”
Jackson said the environment is frustrating for doctors who say the law prevents them from treating patients the way they were taught.
“For our medical staff, having to adjust and adapt to a law that’s not really rooted in medicine and in best practice is challenging,” Jackson said. “I just explained how so many of our patients are now coming in earlier, where before the Dobbs decision, oftentimes folks who were that early in pregnancy, we would advise to wait until a few weeks beyond because we can see more clearly where the embryo has been implanted in the uterus.”
“So even though there is good evidence and sort of clear protocols that we are using in these early cases, there are other choices that our physicians would likely make if they were not bound by these restrictive bans.”
Democratic State Rep. Michelle Au, a Johns Creek anesthesiologist, said that frustration is also present in hospitals, where doctors can be unsure whether the best procedure for a pregnant patient could lead them losing their license.
Georgia’s abortion law allows for exceptions in medical emergencies, but Au and other medical providers say the language is too vague for doctors to know which procedures are allowed under which circumstances.
“Doctors in Georgia now work in an environment where we are afraid to do our jobs,” she said. “We work in an environment where medical judgment and patient care are criminalized and where we are told that sloppily written laws authored by state legislators with no medical training whatsoever supersede centuries of research and science and clinical expertise.”
A divided state
While abortion providers and supporters treat the Dobbs anniversary as a solemn occasion, abortion opponents in Georgia are celebrating. In an email to supporters ahead of a June 24 rally at the state Capitol, Cole Muzio, president of the influential conservative lobbying group Frontline Policy Council, celebrated Georgia’s reduction in abortions but bemoaned the lack of progress toward further restrictions.
“We remain a swing state with a precarious pro-life majority. While we have many members eager to see every life saved, others have a more cautious approach. We also have an electorate across our state that – while aligning closer to the Kemp position on abortion than the Abrams position on abortion – is not supportive of efforts for an outright ban,” Muzio wrote.
In a January Atlanta Journal-Constitution poll, 49% of respondents said they want the Legislature to make abortion access easier, compared to 21% who said they want it harder and 24% who said keep access the same.
Muzio said the group’s top priority will be pushing for a law requiring an in-person doctor’s visit for women seeking medication abortions. A bill with that goal passed the Senate last year before the Dobbs decision but stalled in the House.
The U.S. Food and Drug Administration lifted an in-person requirement for a prescription for a drug called mifepristone during the pandemic and later made the rule permanent.
The Supreme Court in April kept mifepristone available as a lawsuit over its approval works its way through lower courts.
While an upcoming election could spur Republicans to support strengthening abortion restrictions in order to inspire their conservative base, the party is also aware of the unfriendly statewide polling, said Atlanta Democratic state Rep. Shea Roberts.
“I do think there are Republicans in rural areas that do understand the issue with getting health care at this point, and medication abortion is not just for abortion, it’s also prescribed for miscarriages as well,” she said. “And so it could possibly impede their constituents’ getting medical care that is legal in the state, so I honestly don’t know the answer on that one.”
Depending on how the state Supreme Court rules on a challenge to the abortion law, legislators could have more on their plate than refining the current law.
A group including the Feminist Women’s Health Center is suing over the law. Their main argument is that since the law was unconstitutional when it passed before Roe v. Wade was overturned, it should be considered legally void. That would leave it up to the legislature to craft a new law.
The court heard arguments in March, and a decision is scheduled to come any time before their fall session ends in November.
A decision could come much sooner, said Anthony Michael Kreis, an associate professor of law at Georgia State University, but the ruling will likely not be the end of the story.
“My assumption is probably within the next few weeks we’ll see some development,” Kreis said. “But I think the more important thing is that no matter what happens with the Georgia case right now, we’re going to either be in for another round of legislation or another round of litigation. So this is really an intermediary stop.”
That’s because the decision the court has to make is whether or not the law was validly passed, he said, not about the fundamental question of whether it is consistent with the right to privacy protected by the state Constitution.
“So if the plaintiffs win, that just simply means that the General Assembly gets to go back and try again,” Kreis said. “And if the plaintiffs lose, that means that (they) go back to the trial court and have the Fulton County Court and Judge (Robert) McBurney decide whether or not a fundamental right to privacy under the state constitution has been violated.”
Jackson said abortion rights supporters are ready for the battle to continue, whether in court or in the legislature.
“Our work is to continue to mobilize activists around the state who care very deeply about this issue so that they can make sure that their elected representatives understand what they need and what they want, and that we can push for the kinds of policies that will support the people of Georgia and making sure that they have full bodily autonomy and full ability to self determine,” she said.
“I don’t take for granted that those fights will be difficult and that they will not be easily won, but we believe that reproductive freedom is critical to our liberation, and so we will not give up fighting.”