Baker & Hostetler's Derek Bauer did his best Monday to get his client dismissed from a federal lawsuit over Georgia's new law against abortion.

He lost. But the effort provided some of the liveliest debate in a two-hour hearing Monday before Judge Steve Jones of the U.S. District Court for the Northern District of Georgia.

Bauer is representing DeKalb County District Attorney Sherry Boston, one of many defendants in the suit—a constitutional challenge to House Bill 481, which the state calls "the Living Infants Fairness and Equality Act."

As Bauer pointed out in briefing and in oral argument, Boston has said publicly and repeatedly that she would not enforce the new law to prosecute women or their doctors. She said the law restricting abortion early in pregnancy violates women's rights to privacy and U.S. Supreme Court precedent, which allows for the procedure up until viability, when a baby could survive after birth with medical care.

Essentially, Boston and the plaintiffs are on the same side, Bauer told the judge. But they differ on whether to enjoin prosecutors from enforcing the law. And that was the point of Monday's hearing.

"There has to be a credible threat," Bauer told the judge. Since no such threat of prosecution under the new law exists in DeKalb County, Boston shouldn't remain as a defendant in the case, he argued.

Jones had questions. The first one surprisingly involved longtime Georgia Sen. Johnny Isakson's planned retirement at the end of the year, leaving his job open for the governor to fill.

"What if tomorrow Gov. Kemp calls Sherry Boston and says, 'I want you to be the next United States senator from Georgia.' And she says 'yes,'" Jones asked. "The governor would appoint a new DeKalb DA, and couldn't that DA prosecute?"

"Then they'd have somebody to sue," Bauer replied. "But they don't now."

Bauer added he thinks it's "highly improbable that the governor calls Sherry Boston" for the U.S. Senate job. He's a Republican. She's a Democrat.

"I don't get involved in politics," Jones answered.

But that wasn't the judge's only issue with the argument.

"I have great respect for Sherry Boston," Jones said. "But the district attorney has no authority to decide what the law is."

Bauer wasn't giving up.

"She has absolute charge discretion on who she is going to prosecute," Bauer replied. "The irony here is we want the plaintiffs to win. We're in this case clearly as a pretext to get into the U.S. Supreme Court."

Bauer reminded Jones of his own time as an assistant district attorney in Athens, and the discretion he had as a prosecutor.

But Jones was unmoved.

"I also said I would enforce the law, whether it liked it or I didn't like it," Jones said. "I have great respect for all the prosecutors in the state. They don't get to decide what laws they enforce and what laws they don't enforce."

Bauer and Jones continued with a back-and-forth argument that was more debate than questioning.

The bottom line was Bauer asserted that enjoining prosecutors from enforcing laws sets a dangerous precedent that is "ripe for abuse."

"You shouldn't be manipulated," Bauer told the judge.

And Bauer sent a broader message.

"If people want to do these procedures in the Stone Mountain Judicial Circuit, you are free to do it right now," Bauer said. "There is no threat the DA will prosecute."

Bauer also told the judge that, "if my client is still in this case by this afternoon, I will be filing a motion to dismiss."

She was, and he is.

In the action, SisterSong Women of Color Reproductive Justice Collective and numerous others have sued Georgia Gov. Brian Kemp, Attorney General Chris Carr and numerous prosecutors. The state law at issue bans abortion upon detection of an embryonic pulse, which 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.