Jun 30, 2022 - News

What could be next in the legal fight for abortion in Georgia

Illustration of window curtain with the female symbol as the curtain pull.
Illustration: Allie Carl/Axios

As a federal appeals court weighs the fate of Georgia's anti-abortion law, the state's abortion rights community is brainstorming other ways to challenge it, should it go into effect.

Driving the news: Some have zeroed in on state-level protections of a right to privacy as a viable legal avenue.

The big picture: "A robust right to privacy has been core to our state constitutional tradition for 115 years," writes Anthony Michael Kreis, a constitutional law professor at Georgia State University in a Thursday op-ed.

  • Kreis points out Georgia's was the first state high court in the country to recognize a "substantial privacy right." The right to privacy under the state constitution, he argues, is stronger than at the federal level.

Zoom in: The 1905 Pavesich v. New England Life Insurance Company decision, Kreis writes, found liberty meant "more than the right to be free from unjustified physical restraint. Liberty also includes the simple desire 'to be let alone,' to be free to order our lives as we choose if we pose no harm to the public, and the 'right to withdraw from the public gaze.'"

What they're saying: Don Samuel, an Atlanta defense attorney who has defended women's rights to an abortion in Georgia told Axios the strategy "is something that's certainly worth talking about." While he's not confident the state Supreme Court would ultimately rule in favor of a challenge, "I think it's worth pursuing," he said.

  • Samuel suggested there wouldn't need to be many changes to the existing federal challenge to get it ready for the state court system.
  • State Sen. Jen Jordan, the Democratic nominee for attorney general, agreed at a news conference this week that using the right to privacy is a "viable challenge."

The other side: Attorney General Chris Carr's office declined to comment for this story.

  • In a notice to the court last week, the solicitor general urged the federal court to uphold Georgia's anti-abortion law, arguing there is "nothing left of the Plaintiff-Appellees' argument that Georgia law imposes an unconstitutional burden on the practice of abortion."
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