Linda Klein (Photo: J. Albert Diaz/ALM)

It's not often that a litigator has a chance to open an oral argument by agreeing with a federal judge's wife.

But that's exactly what Baker Donelson's Linda Klein did in the final argument of a two-hour hearing Monday before Judge Steve Jones of the U.S. District Court for the Northern District of Georgia over the state's new law against abortion.

"Your wife is very, very smart," Klein said in opening her argument on behalf of Fulton County District Attorney Paul Howard, one of many defendants.

Jones had just shared that his wife has always listened to him talk about what he was going to say when he was a lawyer and then what he was going to ask once he became a judge. Before this hearing, she offered a suggested question for lawyers representing Gov. Brian Kemp. With that, she also put into perspective her husband's ranking in the hierarchy of the justice system.

"Where does the U.S. District Court have authority to overturn the U.S. Supreme Court?" Jones asked on behalf of his wife.

The crowd in the packed courtroom seemed to draw in its breath. Someone whispered, "Whoa."

At that moment, Jones was questioning Patrick Strawbridge of Consovoy McCarthy from Washington, D.C.

Attorney General Chris Carr and Solicitor General Andrew Pinson, tasked with defending the state, have hired outside counsel: Jeffrey M. Harris of Consovoy McCarthy. Harris was not there Monday, but his partners Strawbridge and Steven Begakis were.

Strawbridge had no answer for the judge's wife.

"We certainly recognize this court does not have the authority to overturn Supreme Court precedent," he said. And then he was done.

When it was her turn, Klein smiled warmly at the judge and promised to be brief. "I only have two points," she said.

The first point: "Your wife is very, very smart."

The reason: Stare decisis—a legal doctrine that binds courts to follow legal precedent. It's a Latin term meaning "to stand by that which is decided."

Both Howard and DeKalb County District Attorney Sherry Boston have said publicly that they would not enforce the new law to prosecute women or their doctors. Their statements put them on the same side as the plaintiffs who are suing them.

Where Howard and Boston differed Monday was that she opposed enjoining prosecutors from enforcing this or any law, saying it would set a dangerous precedent.

Unlike Boston, who had a beef with the plaintiffs, Howard just agreed with them, through Klein.

"We live in a world where privacy has become a luxury. It must not be a luxury here," Klein said. "These are the most personal decisions you make in a lifetime."

And Klein's second point?

"Your wife is smart for a different reason," Klein told the judge. "The right to privacy in pre-viability abortions has been the law of the land for 50 years."

With that, she took her seat.

In SisterSong v. Kemp, No. 1:19-cv-02973-SCJ, SisterSong Women of Color Reproductive Justice Collective and others have sued Kemp, Carr and prosecutors around the state alleging the new law against abortion is unconstitutional and violates U.S. Supreme Court precedent dating back 50 years to Roe v. Wade. The landmark decision made abortion legal up until the point of viability, when a baby can survive on its own, with medical care.

House Bill 481, the "Living Infants Fairness and Equality Act," or "LIFE Act" redefines "natural person" in the Georgia Code," the parties said in a joint preliminary report and discovery plan. "Plaintiffs describe it as banning abortion at a pre-viability point in pregnancy; Defendants describe it as restricting certain types of pre-viability abortions to pursue its interests in saving unborn life, protecting maternal health, safeguarding the integrity and ethics of the medical profession, and encouraging childbirth."

The law is one of dozens around the country that supporters call a "heartbeat bill" because it bans abortion from the point when a doctor can pick up a pulse on an ultrasound. That can be as early as six weeks into pregnancy, according to the statute. Opponents say the name is intentionally misleading because no heart has yet formed in what would be a tiny collection of cells.

Opposing counsel used differing terms: "life and "potential life." Georgia's law gives embryos the full rights of citizenship. It bans abortion upon detection of an embryonic pulse, which the statute says can be as early as six weeks into pregnancy, and carries criminal penalties. The governor signed the bill into law on May 7. The law is set to take effect Jan. 1.

Activists challenging the law were asking for a temporary injunction blocking it while their lawsuit is pending. The state argued that no injunction is necessary because the case can be decided before the law takes effect. Jones said he has the case on a four-month track toward a trial that will be after the law would take effect. He left a window open for the parties to agree to expedite the process by shortening or eliminating discovery to speed things up. But he said he believes they need some discovery, even if it's abbreviated. The arguments and the judge's many questions Monday seemed to suggest an injunction will be granted and a bench trial will take place in early 2020. But Jones reserved judgment, saying he would take all the arguments under advisement and rule soon.