As soon as the Supreme Court announced it had overturned Roe v. Wade, local Democrats across Georgia began announcing that they would not use their offices to defend or enforce House Bill 481, the state’s pending law banning abortion after about six weeks, if it’s enacted.
Seven local district attorneys around the state, including in Savannah, and Fulton and DeKalb counties, said they would not use their offices’ resources to enforce the law. City council members in Atlanta, Athens, and South Fulton moved to make enforcing the law their “lowest possible priority.”
And state Sen. Jen Jordan, the Democratic nominee for Georgia attorney general, said if she’s elected, she won’t defend the law in court on behalf of the state. “I won’t defend it because I don’t think it’s lawful,” she told reporters.
South Fulton Mayor Khalid Kamau said for him, access to abortion is about medical privacy, maternal mortality, and keeping Black families out of poverty.
“We know that unplanned pregnancies happen five times more often for women of color, and I cry for all of those, but at my core I really believe that it is nobody else’s business,” he said. “We are the blackest city in America, 92% African American, so this is an issue that affects many women of color and many of my constituents.”
With each announcement, my own inbox filled up with two primary questions from AJC readers — Is all of that legal? And will it matter?
Can district attorneys choose not to prosecute people who may have broken the law? Are local governments allowed to effectively ignore a state law their elected officials don’t support? And can a state attorney general refuse to defend a law if it’s challenged in court? The answers are yes, yes, and it depends on who you ask.
Most legal and legislative experts I spoke with agreed that it’s within city and county officials’ authority to generally opt-out of their piece of enforcing the law.
But those same experts said it likely won’t keep the law from achieving its goal of drastically reducing women’s access to abortion in Georgia — and it won’t keep the issue from being the subject of heated debates and possibly new litigation to prove otherwise, especially in the case of the state attorney general.
Dr. Anthony Michael Kreis, a constitutional law professor at Georgia State University, said that cities have long had the discretion to funnel resources in the way that they think is best for the benefit of their citizens.
In that same vein, district attorneys also have a long precedent of deciding which crimes to prioritize for prosecution, with limited resources for lawyers and courts.
And at the state level, he said, “The attorney general’s office will certainly be asked to defend the constitutionality of HB 481, if and when there are challenges in state or federal court. It’s entirely within the attorney general’s prerogative to say the law is enforceable, but I’m not defending it.”
At a recent event with abortion activists in East Atlanta, Jordan said as much and praised the local district attorneys for saying they won’t go along with H.B. 481 if it’s enacted, either.
“We’ve had really brave prosecutors stand up in these various counties to say, ‘What are you talking about? I’m going to use my prosecutorial discretion. I’m not going to prosecute doctors. I’m not going to prosecute women just because they’re making healthcare decisions that they need to make for their bodies.’”
Jordan also made the case that Chris Carr, the current Republican attorney general, isn’t talking about defending every law in Georgia, such as the laws that ban adultery and fornication, which she explained are still technically illegal in Georgia.
“It’s about priorities,” she said. “It’s about using your discretion in a way that your community wants you to do.”
Carr has made his priorities clear when it comes to the 6-week abortion ban. Shortly after the Dobbs decision was announced, he filed a motion before the 11th Circuit Court of Appeals requesting that the law be allowed to take effect.
He has been vocal in denouncing the local DAs who said they won’t enforce it — and, in a statement to the AJC, said the same about Jordan.
“Preemptively announcing that you will not enforce or defend certain laws is not prosecutorial discretion, it’s dereliction of duty,” Carr said. “If you don’t like our laws, you should run for the Legislature, not for DA or Attorney General.”
The exact role of the attorney general has been a matter of debate in the past. In 2003, GOP Gov. Sonny Perdue filed a lawsuit to compel Democratic Attorney General Thurbert Baker to drop a reapportionment fight. Baker refused and the state Supreme Court backed Baker in that case.
Years later, Perdue had to appoint a “special attorney general” to sue the federal government over health care mandates because Baker would not.
At a press conference about the move, Perdue said he thought the state constitution required Baker to act, but “I can’t force him to do that.”
Sam Olens, a Republican who was twice elected attorney general, said defending state laws, regardless of your personal opinion, is the job.
“I simply feel that it is the role of the attorney general and consistent with their oath of office to defend the law, even where you don’t support the law.”
To get a sense of how a patchwork of enforcement might affect the controversial law, I reached out to state Rep. Ed Setzler, the Republican author of the bill.
Setzler said while the criminal penalty of one-to-10-year penalty of jail time for doctors performing illegal abortions has not changed, the broadest and strongest enforcement of the legislation will come from the state medical licensing board — not the district attorneys, not the attorney general, and not mayors or city councils.
Along with a criminal penalty of 1 to 10 years in jail, doctors who don’t follow the exact provisions of the pending law could have their licenses and ability to practice medicine in Georgia revoked.
“This discussion may be good theatrics within deeply blue inner cities,” he said. “However, local governments are not and have never really been important players in enforcing the practice of medicine in Georgia. The LIFE Act will be no different.”
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