Attorney: Attorney general candidate justified in dissent against Georgia's abortion law

Julie Wade is a lawyer and former elected official in Savannah and can be reached at juliemwade@gmail.com

This column is in response to a commentary written by staff opinion columnist Adam Van Brimmer. Read it here.

The attorney general of the State of Georgia is the people’s lawyer, charged with representing the citizens of Georgia by ensuring the rule of law in our state. Those laws come in many forms, such as the Georgia Constitution, U.S. Constitution and state statute.

Sometimes, these different forms of laws conflict. The role of the attorney general is to use sound legal judgment and experience to represent Georgians based on an informed and objective view of the existing law.

Columnist Adam Van Brimmer recently criticized State Sen. Jen Jordan for her position that she would not defend Georgia’s restrictive abortion ban because it violates Georgia’s state constitution. Van Brimmer's premise was that the attorney general's job is to defend the state and its laws, even those the officeholder might not agree with.

His opinion is flawed, and here's why.

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The right to privacy

Jordan is a woman and lawyer running for Georgia attorney general. She has over 20 years of courtroom experience and has served Georgians in the Legislature since 2017. An experienced lawyer, Jordan’s position that she will defend a woman’s right to access abortion services is based on longstanding case law that establishes a right to privacy enshrined in the Georgia constitution. Her argument merits equal consideration.

Since 1905, the Georgia Supreme Court has recognized a substantive privacy right for all Georgia citizens, founded in the Georgia constitution. Georgia’s right to privacy is broader than the federal right previously recognized in Roe v. Wade and has been foundational in protecting the rights of parents to make decisions for their children, citizens’ rights to refuse medical care, and rights for the LGBTQ community.

A basic legal concept, constitutional rights always prevail over conflicting statutory rights. This is the legal foundation that forms Jordan's position that Georgia law continues to protect a woman's right to an abortion.

The office of the Attorney General

We want an attorney general who will follow the rule of law. So it is worth examining the actions of the current attorney general, Chris Carr, who is running for re-election against Jordan.

Prior to the U.S. Supreme Court’s decision overturning Roe v. Wade, Georgia’s ban on abortion was blatantly unconstitutional at both the state and federal levels. Yet Carr spent hundreds of thousands of taxpayer dollars to launch an aggressive and unsubstantiated defense of the law in the face of Supreme Court precedent directly contrary to his position.

The attorney general faced a legal conflict between a state statute and both the Georgia and U.S. constitutions and chose to defend the state law. Another elected official, using independent sound legal judgment, could reasonably and soundly make the other choice - the more legally honest choice, as Jordan has pledged.

The attorney general is the lawyer for the people of Georgia, not the lawyer for whatever party may hold the majority in the state legislature. The attorney general’s role is not to rubber-stamp whatever the state legislature may pass with blind adherence to the ruling party.

The job is to use sound, independent, legal judgment to assess which law, state statute, Georgia constitution, or U.S. Constitution, prevails. This system of checks and balances, critical in all levels of democracy, protects the people of Georgia.

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We need leadership

As Georgia may face a divided government in the near future, these principles of independence and discretion in the attorney general become even more critical. Unlike the federal system, the attorney general of Georgia is elected independently and is directly accountable to the people of Georgia.

If Georgia has a Democratic governor and Republican-controlled legislature, the attorney general's position on which law to defend, when faced with conflicting laws, directly impacts the people of Georgia. While the discussion here arises in the context of Georgia’s highly controversial abortion ban, the duties of the attorney general to use sound judgment to assess the legality of certain laws arise in much more mundane issues. The state legislature is not a body of lawyers, and the attorney general's job is to look critically at all legislation to ensure its legitimacy and legality.

Georgia needs an attorney general with sound legal judgment, a deep understanding of case law and precedent, experience in legislative and judicial matters and the confidence to follow the law, even if it conflicts with political party rhetoric.

This article originally appeared on Savannah Morning News: Georgia abortion law: AG candidate Jen Jordan is justified in dissent