Privacy ruling could help keep abortion legal in Georgia

Protestors marched from Centennial Olympic Park to the Capitol in Atlanta on Tuesday, May 3, 2022, the day after a Supreme Court draft opinion was leaked, indicating that Roe v. Wade could be overturned. Supporters of abortion rights are now considering a legal challenge based on privacy, involving a 1903 state Supreme Court ruling, that could keep the procedure legal in Georgia. (Arvin Temkar / arvin.temkar@ajc.com)

Credit: arvin.temkar@ajc.com

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Protestors marched from Centennial Olympic Park to the Capitol in Atlanta on Tuesday, May 3, 2022, the day after a Supreme Court draft opinion was leaked, indicating that Roe v. Wade could be overturned. Supporters of abortion rights are now considering a legal challenge based on privacy, involving a 1903 state Supreme Court ruling, that could keep the procedure legal in Georgia. (Arvin Temkar / arvin.temkar@ajc.com)

Credit: arvin.temkar@ajc.com

Paolo Pavesich was surprised to find his picture in an advertisement for New England Mutual Life Insurance. The Atlanta artist didn’t have a policy from New England Life, and he’d never given the company permission to use his image. Pavesich sued, alleging invasion of privacy. And he won.

Today, that ruling from 1903 may have unlikely repercussions: It could prove pivotal in deciding the fate of abortion in Georgia.

If the U.S. Supreme Court strikes down Roe v. Wade — as a leaked draft opinion suggested it was poised to do — then some Georgia abortion rights supporters plan to embrace a strategy that would throw the decision to the state’s top court. With its ruling in the Pavesich case, the Georgia court became the first of its kind to recognize an enforceable right to privacy, the same right at the center of the Roe decision.

“People don’t think of Georgia as progressive, but we have some of the strongest privacy protections,” said state Sen. Jen Jordan, a Democratic candidate for attorney general.

Jordan said if she is elected, she will file a lawsuit in state court rooted in the state’s privacy precedents. Legal experts from both sides of the political aisle said it would have a legitimate chance of success.

“It’s a real open question,” said Josh Belinfante, a lawyer who has represented prominent Republicans in the state. “Georgia will not necessarily follow the Supreme Court’s lead.”

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 an abortion challenge based on similar reasoning would prevail.

“There are direct parallels,” he said. “Both deal with personal privacy.”

The draft U.S. Supreme Court opinion, which was leaked last week, dealt with an abortion challenge out of Mississippi. The opinion, which is not final, said the reasoning behind Roe was flawed and there is no constitutional right to privacy.

The court essentially left the matter to the states. In Georgia, legislators charted the path forward in 2019, when they enacted a law that would outlaw most abortions after a fetal heartbeat is detected — typically about six weeks into a pregnancy. A U.S. district judge placed the Georgia law on hold until the high court ruled on the Mississippi case. Georgia’s law would presumably take effect if the high court overruled Roe, inevitably setting in motion new legal challenges.

Oftentimes, state court rulings can be appealed to the U.S. Supreme Court. But legal experts said states may grant their residents more rights than the U.S. Constitution, meaning if Georgia chooses to continue to recognize a right to privacy, it could.

That means the Georgia Supreme Court would likely be the ultimate arbiter.

In recent years, justices have usually been appointed by the governor — they must later stand for election but, once on the bench, incumbents have never lost. Georgia has had Republican governors since 2003, so the court has tilted conservative. That shift has been helped along by Gov. Nathan Deal’s expansion of the court by two justices in 2016.

Belinfante said today’s court has interpreted the Georgia Constitution more as an originalist would — hewing closely to the language in the document. He noted that the word “privacy” does not appear once in the Georgia Constitution and called the right of privacy in the state “judge-made.”

“It doesn’t have the best textual basis,” he said.

Jordan said she is hopeful the state court would follow its precedents on privacy.

“They are exceedingly clear,” she said.

Former Georgia Attorney General Sam Olens, a Republican, said the basis for a privacy-based abortion lawsuit seemed valid. But he questioned whether the state attorney general — who typically defends state laws — would be justified in challenging a law passed by the General Assembly.

“It seems to me it would be a violation of the oath of office,” Olens said. “Certainly, I’m not aware of any other instance where that has happened.”

Jordan’s opponent in the Democratic primary for attorney general is Christian Wise Smith. He said if he is elected, he will instruct district attorneys and law enforcement officials in the state not to enforce Georgia’s abortion law.

“I’m a prosecutor,” he said. “I’m familiar with prosecutorial discretion.”

Staff writer Bill Rankin contributed to this article.