In the years leading up to the overturning of Roe v. Wade, Megan Gordon-Kane says that she and other reproductive justice activists felt like Kassandra, the mythological priestess gifted with predicting the future, while at the same time cursed, never to be believed. That future without Roe having come to pass, and with litigation for HB 481 looming over Georgia, Gordon-Kane, a lawyer and Public Affairs Manager at the Feminist Women’s Health Center in Atlanta, breaks the Dobbs decision all the way down for the Peach Pit- offering clarity and insight on its fallout to date. 

Firstly, and most importantly 

“Right now, immediately, in Georgia, abortion is legal. The law has not changed in Georgia. Some states have trigger bans, that meant that as soon as the Supreme Court ruling went into effect, abortion laws changed in their states, Georgia is not one of them. Abortion remains legal in Georgia, up until 22 weeks.”

On the state of HB 481, aka the Heartbeat Bill and what was up with Chris Carr’s tweet

“Our case about the six-week ban and HB 481 was officially paused [in Fall of 2021] waiting for the Dobbs ruling, because the appellate court basically said, ‘The Supreme Court is about to change this whole area of law, so it doesn’t make sense for us to move forward this case when the Supreme Court is going to kick us all back and make us redo our work before it even finished.

There’s been two different tracks on that litigation. The injunction, which basically answers the question, ‘While we are arguing about whether or not this is constitutional, will it be allowed to go into effect?’ And the judge said really clearly, ‘No.’ Which is exactly why we have not had a six-week ban in effect in Georgia.

And paired with that litigation, was the larger question of, ‘Is this Constitutional in the first place?’ So, we got the injunction, and the question, ‘Is this constitutional in the first place?’ has been paused.

Then a few hours after the Dobbs ruling, [Attorney General] Chris Carr tweeted that he had filed a request with the appellate court to ask them to let 481 go into effect, now that the Supreme Court had overturned Roe. And everyone had freaked out that it was a request for them to overturn that temporary injunction, but it wasn’t even an official filing. 

[Attorney General Carr and Governor Kemp] wrote a letter to the clerk of the court, saying, ‘Hey, we should win now, because of Dobbs.’ That was a publicity stunt. 

But [as a result of Dobbs] the case has been officially unpaused. The judge said basically, ‘You have two weeks to write me briefs of how Dobbs changes the case,’ and we don’t know the timeline after that. This is all fairly unprecedented.”

Speaking of unprecedented, a couple of things. . .

“This is the first time that the Supreme Court has revoked a right that it previously granted.” 

“[HB 481, apart from the six-week ban] also includes fetal personhood. No one has ever had a law like that before. It literally changes the definition of a person in Georgia law to include a fertilized egg.

They specifically wrote in the statute about things that they would want to apply, that a fetus would be counted in the census- which is a little silly because the Census is run by the Federal government and not the state- that fetuses will count as dependants on people’s tax returns, without saying how that will be executed. 

It’s not clear how that’s going to play out. What are the implications for IVF? Which often involves implanting multiple fertilized eggs understanding that a lot of them won’t take because those fertilized eggs are legally people now. Would that be the reckless endangerment of a minor? 

And people think, ‘Of course not,’ but those are the implications.”

On the Dobbs ruling and its whack logic

“Roe v. Wade, and the abortion cases that came after it, was grounded in the fourteenth amendment, and due process- what is called substantive due process- a really weird piece of Constitutional law.

What the majority said is, if a constitutional right is not explicitly named in the constitution, then in order for it to be constitutional, it must be firmly rooted in the nation’s history and traditions. So they went on this little history expedition, where they ignored the custom of people having abortions, and only looked at the legal scholarship of it, without acknowledging the fact that at the time scholarship was only done by white men.

Because the fourteenth amendment was ratified in the 1800s- I understand why you’d want to look at the legal scholarship- but you have to acknowledge in this time it is going to be very limited. Because they’re also saying, ‘Was there a robust legal debate?’

And I just wrote in my notes, ‘Dude, women couldn’t even own property.’

It was a selective history-finding mission, so they find that because abortion isn’t rooted in our nation’s legal history and tradition- at least it wasn’t at the time the fourteenth amendment was ratified- it’s not a constitutional right.”

Clarence Thomas said the quiet part out loud

“Clarence Thomas takes it a little step further, and he actually doesn’t believe that the substantive due process interpretation of the Constitution is a correct Constitutional interpretation, which is getting way nerdier than what actually makes sense. But what he’s saying is, ‘This thing that you’re looking for is wrong. Due process doesn’t grant substantive rights, it only grants your procedural- you get XYZ things before you can be tried for a crime- [rights]. It doesn’t grant you anything substantive like a right to abortion or gay marriage, or any of these things.’ 

He’s like, this entire thing that people have been looking at in this amendment is wrong, and therefore, we should overturn all of these cases that are based in the 14th amendment, and instead, re-examine these rights and see if we can find them, but rooted anywhere else in the Constitution. However, he also signed onto the majority opinion.

So based on the logic, like no, there’s not going to be a right to contraception in the Constitution, there’s not going to be a right to gay marriage rooted in the Constitution. 

So basically this interpretation of the constitution ensures that people who were marginalized historically will remain marginalized. And any Constitutional right which is rooted in the 14th amendment, which includes things like Brown v. Board, is in danger.”

How Congress broke SCOTUS

“We all know about the way that Mitch McConnell refused to hold a hearing for Merrick Garland when he was nominated, but what is less well known is that he also held up hundreds of appointments to the Federal bench under Obama, so there were literally empty judgeships that needed to be filled- completely routine positions that he refused to hold hearings on and confirm. 

He became the first to deeply politicize the federal bench, which meant that Trump came in, and was able to continue that trend and worsen it, by appointing very political and deeply unqualified white people, and now those people are in a position to move up through the pipeline and make the law. 

The partisan politics in Congress have gotten so bad that they have broken the courts to score political points.”

On joining the fight for your rights

What I’m seeing right now is people who are newly engaged are really overwhelmed at the number of bad things that are happening. So pick an issue, trust that the movement is big, no one of us is responsible for fixing everything, and know that our brothers and sisters and siblings in the movement are going to be doing their best on issues that you aren’t working on. It is a team effort. So pick the thing that you are most passionate about, and maybe you’ll jump around a little bit, and that is okay. Do whatever work feels best for you. 

I am a big law nerd, so I do policy advocacy because I love it. I actually don’t like going to protests, because I don’t like yelling- it makes me uncomfortable. Some people love that and it gives them energy, but they feel super uncomfortable talking to lawmakers. Cool. Some people love organizing or really want to be clinic escorts, or want to make art, or help create events and fundraisers. There is no right, best way to do the work. It should include shooting an e-mail or a phone call to your elected officials occasionally, don’t neglect that, but it doesn’t need to be your primary method of advocacy. 

Update: Since the publication of this article, a three-person panel of appellate judges, all appointed by Republican presidents, two of whom were runners-up for Supreme court nominations from Trump, have instructed the Federal district judge who overturned the HB 481 to reinstate it. A follow-up order has allowed the establishment of fetal personhood and a six-week abortion ban, except in cases of rape, incest, or danger to the mother’s life, to be effective immediately.

Gordon-Kane and a colleague took to Instagram live soon after, to answer questions about the ban, as well as immediate ways to advocate.

Financial advocacy can look like 

Receiving your routine gynecological services with local clinics in lieu of your primary gynecologist during this critical time, as abortion restrictions are forcing many local clinics to close across the country. 

For the directors of Feminist Women’s Health Care who are working to become owners of the clinic, it is foundational for them to receive dedicated monthly donations, however small, in order to plan for the future. 

Good policy does exist in Georgia, and there are ways to support it right now

A coalition of partners in the Amplify Collaborative have been working on the Reproductive Freedom Act, legislation to shift abortion’s definition to its function as a medical procedure and away from its politicization as a criminal act. Gordon-Kane urges pro-choice advocates to contact their respective local legislators to express support for this act, and opposition to the abortion ban. The contact information for legislators can be found on openstates.org.

Gordon-Kane additionally encourages pro-choice advocates living in the city of Atlanta to encourage their city council members to vote yes on an upcoming measure to establish a city abortion fund within the budget. 

On keeping up with the fight

Following frontline reproductive justice organizations such as Amplify Collaborative, ARC Southeast, and Feminist Women’s Health Center on social media, is an easy and effective way to receive vital healthcare information, and find out about ways to become involved in the movement.