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If Roe is overturned, attorneys general will have to interpret state abortion laws

AILSA CHANG, HOST:

A U.S. Supreme Court decision overturning Roe v. Wade would suddenly give all 50 states the power to decide when or if abortion should be legal. But that won't just be a question for lawmakers - state courts, attorneys general, even district attorneys will be thrust into the front lines of this debate, as WABE's Sam Gringlas reports.

SAM GRINGLAS, BYLINE: As news of the draft ruling spread, Democratic attorneys general pledged to fight back. In Michigan, Attorney General Dana Nessel called a 90-year-old abortion ban still on the books draconian and promised not to enforce it. Here in Georgia, Jen Jordan, a Democratic candidate for attorney general, said she'd challenge a restrictive abortion law in state courts.

JEN JORDAN: All right, they've told us that this road is cut off. Where do we go next? And where we go next is the Georgia Constitution.

GRINGLAS: So how much leeway do attorneys general actually have? James Tierney knows a thing or two about the job.

JAMES TIERNEY: They call me the 51st attorney general. That is correct.

GRINGLAS: Tierney served as Maine's AG. Since then, he's been a go-to adviser for state attorneys general. He even teaches a class on them at Harvard.

Tierney says attorneys general have immense discretion. They can choose to challenge a restrictive abortion law in court or defend it.

TIERNEY: It's always important who sits in the attorney general's office. Does who sits in the AG's office end the story? And the answer is, clearly not.

GRINGLAS: In many states, abortion could carry criminal penalties. What attorneys general typically can't do is decide whether to enforce them. In Georgia, that's the job of elected district attorneys. In DeKalb County, that's Sherri Boston.

SHERRI BOSTON: I have people that ask me all the time, what is your position on the possession of drugs? What is your position on gun charges? There's absolutely no reason not to answer this very critical question about how you intend to handle abortion if it becomes criminal.

GRINGLAS: District attorneys in some counties could prosecute providers, patients and people who help them, just as Boston has wide discretion not to pursue those cases.

BOSTON: Where I see laws that are going to divide people based on living in the margins, based on their race, then it is my job to make sure that I use my discretion to lessen those inherent inequalities that exist.

GRINGLAS: Criminal charges aside, some state constitutions may be interpreted not to allow these restrictive abortion laws at all. Remember, privacy rights are the foundation of Roe v. Wade, and Georgia law has strong privacy protections. Anthony Kreis, a Georgia State University law professor, says those privacy protections stem from a century-old court case.

ANTHONY KREIS: And that was the case in 1905 called Pavesich.

GRINGLAS: Paolo Pavesich was an artist. A photograph of him appeared without his permission in a newspaper ad. Pavesich sued, and the Georgia Supreme Court ruled in his favor.

KREIS: The court put it as the right to withdraw from public gaze. And if I'm not bothering anybody, then the state should really have to produce an exceedingly compelling interest in disturbing my peace.

GRINGLAS: The courts have applied Pavesich to other issues, like overturning Georgia's anti-sodomy law. Abortion could prove more complicated. Georgia's abortion law would define an embryo as a person once cardiac activity is detected. A court could determine that protecting embryos overrides a pregnant person's right to be left alone.

KREIS: When you're dealing with these amorphous terms like privacy or equality, there's a lot more room for people's subjective understandings of those terms to come into effect.

GRINGLAS: Kreis says these debates could boil over in lots of states, with lawmakers, courts and the public all trying to interpret their state laws as a 50-year-old right to abortion is overturned.

For NPR News, I'm Sam Gringlas in Atlanta.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.