“It’s a real open question,” said Josh Belinfante, an attorney who has represented prominent Republicans in the state. “Georgia will not necessarily follow the example of the Supreme Court.”
Attorney Steve Sadow used the Pavesich case to persuade the Georgia Supreme Court in 1998 to strike down the state’s anti-sodomy law. Sadow said he believed a challenge to abortion based on similar reasoning would prevail.
“There are direct parallels,” he said. “Both deal with personal privacy.”
The US Supreme Court’s draft opinion, which was leaked last week, deals with an abortion challenge from Mississippi. The opinion, which is not final, said the reasoning behind Roe was flawed and that there is no constitutional right to privacy.
The court essentially left the matter up to the states. In Georgia, lawmakers charted the way forward in 2019, when they enacted a law that would ban most abortions after a fetal heartbeat is detected, usually around six weeks of pregnancy. A US district judge has stayed the Georgia law until the higher court rules on the Mississippi case. Presumably, the Georgia law would take effect if the high court struck down Roe, which would inevitably set in motion new legal challenges.
State court rulings can often be appealed to the U.S. Supreme Court. But legal experts said states can give their residents more rights than the U.S. Constitution, meaning that if Georgia decides to continue to recognize the right to privacy, it could.
That means the Georgia Supreme Court is likely to be the final arbiter.
In recent years, judges have generally been appointed by the governor; then they must stand for election but, once in office, the incumbents have never lost. Georgia has had Republican governors since 2003, so the court has leaned conservative. That change has been helped by Gov. Nathan Deal’s court expansion by two justices in 2016.
Belinfante said today’s court has interpreted the Georgia Constitution more like an originalist would, sticking to the language of the document. He pointed out that the word “privacy” does not appear once in the Georgia Constitution and called the right to privacy in the state “made by a judge.”
“It doesn’t have the best textual basis,” he said.
Jordan said he is hopeful the state court will follow his precedent on privacy.
“They are extremely clear,” he said.
Former Georgia Attorney General Sam Olens, a Republican, said the basis for an abortion lawsuit based on privacy seemed valid. But he questioned whether the state attorney general, who usually defends state laws, would be justified in challenging a law passed by the General Assembly.
“It seems to me that it would be a violation of the oath of office,” Olens said. “Certainly I am not aware of any other case where that has happened.”
Jordan’s opponent in the Democratic primary for attorney general is Christian Wise Smith. He said that if he is elected, he will instruct district attorneys and law enforcement officials in the state not to enforce Georgia’s abortion law.
“I am a prosecutor,” he said. “I am familiar with prosecutorial discretion.”
Staff writer Bill Rankin contributed to this article.
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