SisterSong v. Georgia and the Blocking of Georgia’s 6-week Abortion Ban

11/18/2022 

Monday, November 15, the Fulton County Superior Court struck down Georgia’s six-week abortion ban in the case SisterSong v. Georgia. This ruling means that, effective immediately, there is no longer a six-week abortion ban in Georgia. Pregnant folks in Georgia can now seek legal abortions up to 22 weeks following their last menstrual period.  

In 2019, Georgia lawmakers and Gov. Brian Kemp signed HB 481 into law, banning most abortions after a fetal heartbeat is detected – as early as six weeks following a pregnant person’s last menstrual cycle. This created extreme barriers to abortion, as many people aren’t even aware that they’re pregnant until after six weeks. Although the ban was passed in 2019, it only went into effect this summer after Roe v. Wade was overturned. 

In the SisterSong v. Georgia ruling, Judge Robert McBurney declared that the six-week abortion ban was void ab initio, or void from the start. Under the Georgia State Constitution, any legislation that violates the United States Constitution when it is passed is automatically void. The ruling states that because Roe v. Wade was in effect and pre-viability abortion was protected under the Constitution when HB 481 was enacted, Georgia’s six-week abortion ban violated the United States Constitution at the time of the ban’s passage. This makes the six-week abortion ban automatically void. Effective immediately, abortion providers in Georgia can begin providing full services to pregnant folks across the state. 

The court did not rule on the question of whether the abortion ban violates the Georgia Constitution’s rights to privacy, liberty, and equal protection by forcing pregnant folks to carry to term. Judge McBurney also clarified that the ruling does not bar Georgia from passing a new six-week abortion ban if it is re-enacted by the state Legislature. Because of this, we should prepare for the potential re-introduction of another abortion ban this upcoming legislative session. The state is also appealing the decision to the Supreme Court of Georgia.  

SPARK celebrates this historic moment for Georgians in the fight for reproductive justice and bodily autonomy. We also recognize that the fight is not over in Georgia, and will continue to support abortion justice in our state. 

To help in the fight for reproductive justice, we encourage everyone to post on social media and talk with folks in your community to help spread the word that abortion after six weeks is once again legal in Georgia! 

The Indian Child Welfare Act as Reproductive Justice and Why RJ Folks Should Keep Haaland v. Brackeen on their Radar

Elias Fox Bova Schmidt, If/When/How RJ Fellow

On November 9, 2022, the Supreme Court is set to hear oral arguments for Haaland v. Brackeen, a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). This is an important case for RJ folks to have on their radar – the outcome of Haaland v. Brackeen could have detrimental consequences for the state of Indian law, tribal sovereignty, American Indian and Alaska Native children, and reproductive justice for Indigenous communities across the United States. 

History of ICWA 

ICWA was passed in 1978 to combat the forced removals of Native children from their homes and placement into White families by Federal, State, and private agencies. In the context of ICWA, “Indian” is an appropriate term as it specifically denotes a political identity relating to enrollment in a Federally recognized Native tribe. An enrolled member of a Federally recognized tribe is a citizen of a sovereign Native nation. All Federally recognized tribes have unique enrollment requirements, as would be the case for citizenship of any other nation. ICWA applies only to children that meet the requirements for citizenship of a Federally recognized Native nation. Thus, in the context of ICWA, “Native” or “Native American” and “Indian” are not interchangeable. Additionally, “Indian” is generally not appropriate to refer to a Native or Indigenous person outside the context of that specific political identity. 

ICWA sets minimum federal requirements for the removal and out-of-home placement of American Indian/Alaska Native (AI/AN) children. The minimum standards of ICWA seek to keep AI/AN children within their families, their communities, or with other AI/AN families. Only once these options are exhausted are AI/AN children placed with non-AI/AN families. For decades, ICWA has been described as the gold standard for child welfare laws, and praised by child welfare experts for its goal of keeping children with their families and communities. 

The United States has a long history of forced removal of Native children as a means of eliminating Indigeneity and tribal sovereignty. Although the first boarding schools may have been opened earlier, the Federal Indian Boarding School Initiative has identified 401 Indian Boarding Schools that operated with Federal support for 150 years between 1819 and 1967, including 21 schools in Alaska and seven schools in Hawai’i. Through these schools, Native children were ripped away from their families and forced to endure genocidal and assimilationist abuse at the hands of school administrators under one principle: “kill the Indian in him, and save the man.” By 1926, it was estimated that 26% of all school-aged Native children were placed in Indian boarding schools. Similar genocidal projects were implemented by colonial governments across the globe, such as Canada’s residential schools and Indian Day Schools (1870’s-1990’s), New Zealand’s Native School System (1867-1969), and Australia’s removal policies of the Stolen Generations (1910-1970). 

The U.S. Federally funded boarding school system began winding down by the middle of the 20th century and ended by the 1970’s. However, by the 1950’s, a new system of forced removal was created. As Native families and traditional childrearing practices were deemed unfit to raise Native children, child welfare institutions and government agencies felt that Native children needed to be placed in “better” homes. Thus, Federal, State, and private agencies began to create and fund formal and informal adoption projects. A 1966 Bureau of Indian Affairs press release reads: “One little, two little, three little Indians–and 206 more–are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.”  

From 1958 to 1967, The Bureau of Indian Affairs, supported by the Child Welfare League of America, ran the Federal Indian Adoption Project as a program that promoted the removal of Native children from their homes and adoption into the homes of White families. The Mormon church ran a similar Indian Placement Program from 1947 to 2000, removing Native (mostly Navajo) children from their homes and placing them into Mormon homes and onto Mormon farms for forced labor. Other Native children were removed from their homes by informal policies as well. 

These programs and policies had devastating effects on Native children, communities, and families. A 1976 survey conducted by the Association on American Indian Affairs found that 25-35% of all AI/AN children were being removed from their homes and 85% of those children were placed with non-AI/AN families. In Alaska, AI/AN children were 4.6 times more likely to be placed in adoptive homes than non-AI/AN children. In Arizona, the state with the largest number of American Indian children at the time of the survey, AI/AN children were 4.2 times more likely than non-AI/AN children to be placed in adoptive homes. Before ICWA, at least 80% of families living on reservations lost at least one child to the foster care system. 

ICWA was passed, thanks to Native and allied advocates, in an effort to protect AI/AN children from these genocidal practices of forced removal. With the minimum standards set by ICWA, a greater effort is made to keep AI/AN children with their families and communities. ICWA additionally also allows tribes control over the placement and welfare of enrolled children, allowing tribes to exert sovereignty over their own citizens. Thus, ICWA is a tool that can be used to strengthen tribal sovereignty and to protect the welfare of the children of sovereign Native nations. 

ICWA is not perfect, as AI/AN children still face disparities within the child welfare system. AI/AN children are still four times more likely to be removed from their homes than non-Native children and 56% of all adopted AI/AN children are adopted outside of their families and communities. There are additional, more nuanced considerations as well. Because ICWA only applies to Federally recognized tribes, ICWA does not apply to Kanaka Maoli children, as the colonial United States government refuses to recognize Native Hawaiian sovereignty. However, despite any weaknesses, ICWA continues to be much needed for the sovereignty of Native nations and the protection of AI/AN children. 

Haaland v. Brackeen  

Haaland v. Brackeen is a lawsuit brought by Texas (and formerly Louisiana and Indiana) and several individual Plaintiffs who argue that ICWA violates the U.S. Constitution. The case includes three additional cases that have been consolidated for the Supreme Court to hear at the same time. Mainly, Texas and the individual petitioners in the case argue that ICWA’s placement priority requirements violate the Consitution’s guarantee of equal protection by discriminating against non-AI/AN prospective adoptive parents on the basis of race. It should additionally be noted that the individual petitioners in this case include several White couples that were unable to adopt AI/AN children due to ICWA’s placement requirements. 

The argument made by Texas and the individual petitioners fundamentally misrepresents what “Indian” means within the context of ICWA. As stressed above, Native nations are political bodies that pre-date the United States and are recognized by the US Constitution as sovereign nations with the right to self-government. Thus, the identity of “Indian” is a political identity, not a racial identity, similar to how being a citizen of a foreign nation would function. 

However, we know that tribal sovereignty, pre-determined judicial precedent, and the text of the Constitution has little meaning when it comes to the rulings of the Supreme Court. Although ICWA withstands constitutional muster based on a good faith reading of the law itself and the understanding that “Indian” in the context of ICWA is not a racial categorization, there is a very real threat to the abolishment of ICWA this term. If ICWA is abolished and tribes lose the ability to control the placement of AI/AN children, this will be the beginning of the end of tribal sovereignty within the United States. With Haaland v. Brackeen, the future of Indian law, tribal sovereignty, and the protection of AI/AN children are in the hands of the Supreme Court. And with the current bench, things aren’t looking good. 

ICWA as RJ – What We Can Do to Help

SisterSong defines Reproductive Justice as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” ICWA is situated in the very center of major RJ implications – without ICWA, AI/AN families will lose the right to raise and nurture children within their families and communities. When Native children are removed from their families, communities, and cultures, the practices and traditions of their Native identities are often lost. This has devastating consequences for Native children and their Nations. 

On November 9, 2022, the Supreme Court will begin to hear oral arguments for Haaland v. Brackeen. Oral arguments of Supreme Court cases can be heard online. The oral arguments period of Haaland v. Brackeen presents a crucial time for reproductive justice advocates and organizers to learn about and voice support for ICWA. 

RJ speaks to the right and power of all people to raise their children at home with their families and in traditional practices and culture. In RJ spaces, ICWA should be understood as a tool of Reproductive Justice; ICWA protects AI/AN children from removal from their homes, from their families, and from their communities simply because they are raised in traditional Indigenous ways or because they are raised in conditions of systemic poverty. ICWA also allows for federally recognized Native nations to control the custody and placement of their children, further protecting tribal sovereignty and the preservation of cultural practices and tradition through the safety and love of Native children. Unfortunately, with the current judicial climate, RJ advocates and organizers should also begin to plan for what happens if ICWA is ruled to be unconstitutional. 

ICWA provides protection for AI/AN children by prioritizing placement within a child’s family, community, and culture. Although ICWA is not perfect, it allows an opportunity for AI/AN children to thrive within their own families and communities, even when they are removed from the care of their biological parents. ICWA also has the ability to preserve cultural practices and traditions passed through generations via Native children. 

Overturning ICWA would be a continuation of 500 years of colonialism and genocide at the hands of settler governments across Turtle Island. It would also be a part of the calculated attack by those in power on the bodily autonomy of the most marginalized people within the United States. The threat to ICWA posed in Halaand v. Brackeen is real. It is a Reproductive Justice issue, an issue of tribal sovereignty, and an issue regarding the protection of Indigenous communities against further attempts of genocide. 

If you consider yourself to be an RJ organizer, advocate, or ally, Halaand v. Brackeen and the current threat to ICWA should be on your radar in the coming months. Check out the Protect ICWA Campaign for opportunities to show your support for ICWA and Indigenous communities. If you are interested in providing additional support to Indigenous RJ organizations, consider donating to Indigenous Women Rising. RJ folks must begin to prepare for how we will protect all communities and kin as SCOTUS continues to strip us of any semblance of protection that previous judicial precedent had afforded us. 

SPARK A Change: 15 Years of Sparkles!

Join SPARK Reproductive Justice NOW! on Thursday, November 17, 2022, for our “SPARK A Change: 15 Years of Sparkles” event!

This community centered event will feature delightful local bites, drinks, fantastic performances, and a DJ! We can’t wait to honor SPARK’s 15th birthday with a celebration of our biggest supporters and community!

This is sure to be an evening you do not want to miss!

The full variety show lineup will be announced soon, so be sure to follow us on social media (@SPARKRJNOW)!

Our ticket prices are set to create a sliding scale. We ask that when you purchase your ticket you choose the ticket that appropriately describes your relationship to SPARK and is a price you feel comfortable paying. If you are having trouble paying the price of the ticket please contact us at info@sparkrj.org.

PURCHASE YOUR TICKETS BY VISITING BIT.LY/SPARKLES22

A Message from SPARK Reproductive Justice NOW! —HB 481 is now in effect

This past Wednesday, July 20th, the 11th Circuit ruled that HB 481 – Georgia’s 6 week abortion ban – would go into effect immediately. This law was extremely controversial when it was passed in 2019, leading courts to block its enforcement until now due to legal challenges. A regressively conservative three judge panel ruled that in the wake of the Supreme Court’s decision to overrule Roe v. Wade, HB 481 should be immediately enforced in its entirety. 

This law is one of the most restrictive in the country, banning all abortion care after 6 weeks – before many people even know they are pregnant. Although there are exceptions for rape and incest, pregnant people must file a police report to qualify. Given that the “remedies” for sexual assault offered by the criminal legal system are often retraumatizing, inadequate, and focused on retributive punishment rather than what the survivor wants and needs, it’s not surprising that more than 65% of sexual assault survivors choose not to report. 

In addition to the ban itself, this law includes a fetal personhood provision that begins at fertilization. This is the first of its type to go into effect in the US, and the legal implications are expansive and unclear. This provision demands that starting at fertilization, an embryo can be counted on taxes, in the census, and for child support purposes. It also has the potential to impact and criminalize people who have IUDs and people using IVF to get pregnant. Due to racist over-policing and criminalization of Black communities, this provision is likely to be enforced in a way that disproportionately harms Black birthing people.

We are not surprised by this decision, and we are still deeply committed to unapologetically advocating to protect and increase access to abortion in Georgia. Here are some steps you can take today to support pregnant people on the ground and hold your elected officials accountable by demanding that they support pro-abortion policies: 

  • Donate to our local abortion fund, ARC Southeast, to support direct funding for abortion care and the additional travel, childcare, and other associated expenses 
  • Call or email your representatives in the state legislature and ask them to take proactive steps to expand access to abortion by supporting the Reproductive Freedom Act 
  • If you live or work in the Atlanta metro area, call your city council person and ask them to support the creation of the ATL abortion fund 
    • City Council is scheduled to vote on this on August 1st, so please make your calls before then
    • Sign onto this petition in support of the fund 
  • For people who live outside of Atlanta, call your local District Attorney and ask them not to prosecute people under this law

A Message from SPARK Reproductive Justice NOW! —Supreme Court overturns Roe v. Wade and Planned Parenthood v. Casey

June 24, 2022

This morning, the Supreme Court handed down the official opinion in Dobbs v. Jackson Women’s Health Organization, making official what we expected following last month’s leaked draft. The Court has overruled Roe v. Wade and Planned Parenthood v. Casey, ignoring and invalidating over 50 years of precedent. This ruling nullifies the Constitutional right for birthing people to choose whether or not to end a pregnancy and opens the door for states to severely restrict and even ban access to abortion. 

This news is disheartening in a movement that holds bodily autonomy and empowered decision making at its core. We are all doing our best to honor our frustration, anger, and grief without losing the passion to continue fighting for liberation. As we sit with this challenge, we want to offer a brief meditation from Mariame Kaba on practicing hope as a discipline

“It’s work to be hopeful … You have to actually put in energy, time, and you have to be clear-eyed, and you have to hold fast to having a vision. It’s a hard thing to maintain. But it matters to have it, to believe that it’s possible, to change the world.” 

To be clear, this ruling does not make abortion illegal nationwide. Although many states can and will ban access in the wake of this opinion, options will still exist for people seeking to end a pregnancy, regardless of where they live. For example, those unable to access abortion care in their home state may be able to travel to a state where abortion is available in a clinical setting, and abortion funds can help cover the additional costs that entails. Additionally, self managed abortion with pills is becoming an increasingly accessible option, especially for those who would have to travel long distances or who face financial barriers to accessing in-person abortion care. 

The options that remain available may be more expensive, time consuming, or legally fraught than they otherwise would have been prior to this ruling. However, our movements and communities are committed to collecting and redistributing resources to get people access to care, regardless of their income or circumstance. If you are able, support people seeking abortion care by donating to your local fund, or a fund in an area that will be immediately impacted by the Dobbs decision. 

Although we were anticipating this outcome and are not surprised by the official opinion, we are still deeply disappointed. Moments like these force us to confront the reality of the political landscape we exist in – one that is often hostile to the project of Reproductive Justice and indifferent to the suffering of marginalized people. Engaging with this reality can be exhausting, but the practice of remaining hopeful and working towards positive change is an act of defiance and resilience. We invite you to join us in our Black Sanctuary spaces, FYRE camp, base member meetings, and other offerings as a way to build community, gain skills, and take care of each other as we all struggle to remain hopeful and continue fighting for our collective liberation. 

In Liberation,

SPARK Reproductive Justice NOW! Inc.

CLICK HERE to download the full statement


Resources: 

Information on the legal status of abortion by state: https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned 

Information on accessing self managed abortion with pills https://www.plancpills.org/

Abortion funding for folks in Georgia: https://arc-southeast.org/

Abortion funding nationally: https://abortionfunds.org/need-abortion/

Repro Legal Helpline https://www.reprolegalhelpline.org/

A Message from SPARK Reproductive Justice NOW! —Supreme Court Leak of Draft Decision in Dobbs v. Jackson

May 3, 2022

Last night, Politico leaked a draft of the Supreme Court’s decision in Dobbs v. Jackson, a case that challenges Mississippi’s 15 week abortion ban. In the 98 page draft, author Samuel Alito indicates that the court is poised to wholly overturn Roe v. Wade, the 1973 decision that Constitutionally protects the right to an abortion in the US. The draft would also overturn Planned Parenthood v. Casey, a case that reaffirmed but narrowed the right announced in Roe.

This leaked draft is NOT the official court ruling and will NOT be binding until released as a final opinion. For the time being, abortion is still legal and Constitutionally protected across the country. A leak of this nature is unprecedented, and while it appears to confirm what we feared the Supreme Court would do this summer, it also allows the movement for abortion access time to build support and strengthen our strategy before the official opinion is announced. 

Things will likely get worse before they improve. As written, the leaked draft would make it much more difficult to access abortion and will likely lead to increased surveillance, criminalization and policing of those who choose to end a pregnancy with a disproportionate impact and focus on the most marginalized among us. This draft demonstrates a very extreme view on the liberties granted under the 14th amendment. Most notably, the opinion explicitly states its intended implications for contraception access and marriage rights. In light of these threats, we refuse to back down in our advocacy for a vision of Reproductive Justice where reproductive care, which includes abortion services and care, is accessible to everyone who wants or needs it.  More specifically, we imagine a future where marginalized people have the autonomy to make decisions about their lives, bodies, sexuality, and reproduction free from fear, stigma and shame. We envision a world where our people get to be their and their ancestors’ wildest dreams.

The fight does not end with this leak or with the pending final opinion. As we continue our on-the-ground work, we call on our current political leaders to affirm the protection of our Constitutional right to abortion. In this election year, we also strive to elect decision makers who seek to protect and expand access to equitable comprehensive sexual and reproductive care that includes abortion care. In the midst of this election season, make sure your voter registration status is up to date. You can cast your vote for primary elections in Georgia by May 24, 2022. Make sure you’re registered to vote for the November 8, 2022 general election by October 11, 2022!

We must continue our fight to protect our right to abortion and the full range of reproductive health care. With that, we must also honor our own wellness and community care in this time of action. SPARK will be hosting a Black Sanctuary wellness space on Tuesday, May 10th 6-8PM EST. Use this link to register. 

Resources: 
Repro Legal Helpline https://www.reprolegalhelpline.org/
Information on accessing self managed abortion with pills https://www.plancpills.org/
Donate to Abortion Funds: https://fundathon.nnaf.org

To support SPARK’s ongoing advocacy for Reproductive Justice in Georgia and around the country, visit http://www.sparkrj.org/donate/

In Solidarity,

SPARK Reproductive Justice NOW!, Inc. 

A Message from SPARK Reproductive Justice NOW! —UPDATE ON SB 435

This week the Senate Education and Youth Committee voted in favor of SB 435, a bill that would prevent trans and gender expansive children and young adults from participating in school sports on teams that correspond with their gender identity. If passed into law, this bill would harm all young people – cis, trans, intersex, and gender expansive alike – with particularly troubling implications for Black girls and young women. For more detailed information on how this bill would negatively impact students in Georgia schools, please see our detailed statement

We unapologetically oppose this transphobic and misogynistic piece of legislation. We are deeply disappointed, although not particularly surprised, that the committee voted in its favor. However, this committee is only one set of decision makers that the bill needs to go through before it becomes a binding law. We invite all of our base to join us in continuing to fight it as it goes through the next steps in the legislative process, whether that be through contacting your legislators, giving committee testimony, or educating others in community about the bill. 

To gain advocacy skills and have opportunities to speak directly to your legislators, please register to attend our Legislate This! advocacy day on March 3, 2022. 

A Message from SPARK Reproductive Justice NOW! —SB 435

On Monday, February 1st, a group of Senators in the Georgia Legislature introduced SB 435, a bill that denies the existence of trans and gender expansive students in Georgia schools and actively excludes them from full participation in school athletics. 

If passed, SB 435  would require K-12 schools to discriminate against trans and gender expansive student athletes. Hyperbolic and unsupported claims of unfair competition are no justification for systematically excluding children as young as 5 years old from participation in sports. This bill serves no legitimate purpose and is yet another thinly veiled attempt to advance a bigoted, transphobic agenda.

Trans and gender expansive students experience significantly higher rates of depression and anxiety than their cisgender peers. However, when their families and communities accept and reflect back their names, pronouns, and identities, these students have better mental health outcomes across all measures. Requiring schools to discriminate against their trans and gender expansive students will make it impossible for educators to create environments that foster community acceptance and support. We need legislation that will protect the mental wellbeing of all students, not a bill that will exacerbate existing disparities. 

Trans and gender expansive folks, even when they are young, know themselves. They deserve space to explore their identity and self expression without having to sacrifice opportunities to participate on teams that affirm and respect who they are. Trans and gender expansive children and young adults exist and have always existed, and they are valuable members of our communities. We demand that the Georgia Legislature treat them as such. 

Join us for our annual SPARK Organizing Intensive

New to organizing? Want to develop your leadership while building community with other advocates? What does liberation look like to you?

Leading up to our annual Legislate THIS! Advocacy Day. Join SPARK as we discuss the issues that impact our communities the most and learn how we can build the power needed for us to live our most liberated lives. This training is for new and seasoned organizers and advocates who want to learn about the issues facing Georgia today and gain the valuable skills necessary to build power and effect change.

You will gain:

  • Concrete organizing and campaign development skills
  • Tools and tips for organizing & advocacy
  • Useful information about the 2022 legislative session
  • The confidence to speak truth to power
  • The opportunity to build community with fellow RJ leaders

The SPARK Organizing Intensive is a space that centers Black queer, trans, and nonbinary young people. We invite all to register, but we are amplifying the issues that impact those that exist at the margins.

SPARK will provide $25 Uber meal codes to all participants.

Register by visiting: bit.ly/soi-2022