A leaked draft opinion shows the Supreme Court intends to overturn abortion rights, which would open a likely path for Georgia’s six-week abortion ban to be upheld.
The document, published by POLITICO, was written by Justice Samuel Alito in February and says that the highest court in the country has voted to strike down the 1973 decision made in Roe v. Wade.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote in the 98-page opinion.
Chief Justice John G. Roberts Jr. confirmed the authenticity of the document in a statement released around 11 a.m. Tuesday morning and called the leak a “betrayal” of the court.
While the document is credible, the court said, it does not represent a final decision.
But the draft indicates what many women’s rights advocates have feared: federal abortion protections are in jeopardy.
If the Supreme Court uphold its position, state legislatures will have say over their own abortion policies.
Georgia’s so-called “heartbeat bill” that passed in 2019 is still held up by a federal district court of appeals. The law would ban most abortions once a doctor could detect fetal cardiac activity with an ultrasound — usually around six weeks into pregnancy.
Judges in the U.S. 11th District Court of Appeals heard oral arguments in September but were wary to push the case forward as the U.S. Supreme Court was set to take up Dobbs v. Jackson Women’s Health Organization, a case from Mississippi that bans most abortions after 15 weeks.
Roe’s reversal would favor Mississippi’s law and pave the way for states to make the final decision on abortion access for their residents.
Gov. Brian Kemp’s office responded to the news with optimism that Georgia’s law will eventually go into effect.
“Georgia is a state that values life at all stages,” said Kemp spokesperson Katie Byrd. “Gov. Kemp led the fight to pass the strongest pro-life bill in the country and championed the law throughout legal challenges. We look forward to the Court issuing its final ruling, however, this unprecedented breach of U.S. Supreme Court protocol is deeply concerning.”
Critics of the restrictive measure say many women don’t even know they are pregnant until further into the first trimester, meaning the law essentially amounts to a total ban on abortions.
A coalition of abortion rights advocates in Georgia sued the state after lawmakers passed House Bill 481, which creates a short timeline for a woman to receive an abortion. The law also includes what supporters call “personhood” language that grants legal rights to fertilized eggs.
The Georgia law is on par with a recently enacted Texas law that also bans abortions as early as six weeks and has stirred outrage among supporters of reproductive rights. It was also originally blocked in lower courts.
Kwajelyn Jackson, executive director at Feminist Women’s Health Center in Atlanta, said advocates weren’t surprised by the leaked ruling that Roe v. Wade will be overturned — a possibility for which they have been preparing.
“However, I don’t think anybody was expecting to have this information be shared late last night,” she said. “And for a leak to come from the Supreme Court was also just a surprising phenomenon that I don’t think any of us were anticipating.”
Georgia does not have a “trigger law” that would immediately outlaw abortion if Roe is overturned, she said, so the challenge to HB 481 will still have to play out in court, though the current injunction could be lifted.
But the draft opinion does not mean immediate restrictions of abortions, she said.
“It is just a draft, it is not the final story,” Jackson said. “Abortion care is still available today; it is still legal today.”
Dr. Andra Gillespie, professor of political science at Emory University, agreed that it’s important to remember that the court’s decision goes through many changes and we won’t know the final ruling for another couple of months.
“We have to keep in mind that decisions are in flux until they are released,” she said.
The Supreme Court’s reversal of the landmark decision would also mean a dramatic infusion of the abortion rights debate into both national and state politics ahead of crucial elections.
Mere hours after POLITICO published its article, barricades were being put up around the Supreme Court in Washington, D.C. — hinting at concern for the possibility of large protests.
President Joe Biden responded Tuesday morning by first reiterating the uncertain nature of the final ruling, but said his administration has already prepared for the circumstance where Roe v. Wade is overturned.
“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” he said. “And it will fall on voters to elect pro-choice officials this November.”
The issue will likely deepen the divide between Georgia voters in the contentious upcoming midterm and general elections. Georgians will soon take to the polls to make decisions on the state’s next governor, a U.S. senator, congressional lawmakers and statewide officials.
Democrats and advocates argue that access to safe abortion services is particularly vital in Georgia, where maternal mortality rates are among the highest in the country — especially for Black women.
Late Tuesday night, Democratic U.S. Sen. Raphael Warnock was among the first to weigh in. Warnock’s reelection bid has the potential to determine which party holds majority power in the upper chamber.
“As a pro-choice pastor, I’ve always believed that a patient’s room is way too small for a woman, her doctor, and the United States government,” Warnock said on social media. “I’ll always fight to protect a woman’s right to choose. And that will never change.”
Warnock faces Trump-backed Republican candidate Herschel Walker, who has the endorsement of the prominent anti-abortion organization, the National Right to Life.
Other Democrats echoed rally cries. Jen Jordan, Democratic candidate for attorney general, called Georgia “the next battleground for reproductive freedom.”
Jordan gained national attention when she spoke out against House Bill 481, sharing her own deeply personal story of unsuccessful pregnancies.
Former U.S. Sen. David Perdue, who is locked in a bitter battle with Kemp in the state’s gubernatorial race, boasted of his role in the confirmation of conservative Supreme Court judges under the Trump administration.
Gillespie said that Democrats are already using the news to mobilize voters and raise campaign funds while Republicans are taking the opportunity to cheer a victory for their anti-abortion platform.
“Democrats are going to try to lobby and organize around this,” she said. “There were already Republican candidates who were very clear in making pro-life issues a central part of their campaign strategy. So they’re going to continue to do that.”
A poll conducted by The Atlanta Journal-Constitution showed that a majority of Georgians do not support Roe v. Wade being overturned.
Jackson, with the women’s center, said that Georgians still have the power to make change at the ballot box.
“I hope that this will remind people that we cannot just rest on the backstop of the federal government,” she said. “We actually have to work to not only protect and defend the very fragile rights that we already have, but to expand them to actually meet the needs of people.”
“I want this to not lead people sort of deeply into despair,” Jackson added, “but to actually light a fire and fuel their activism going forward.”
This story comes to Reporter Newspapers/Atlanta Intown through a reporting partnership with GPB News, a non-profit newsroom covering the state of Georgia.