The case centers on the state’s Republican attorney general’s authority to defend a law limiting abortion after the Democratic governor withdrew from further appeals.
Most judges thought the answer was yes.
It would be strange if the appellate rules left “no one out there to protect Kentucky’s law, even though there are significant parts of Kentucky’s government that still want to defend their law,” Justice Elena Kagan said.
The tenure of the Supreme Court in abortion cases is pervasive. Last month, judges cited procedural reasons for allowing a Texas law prohibiting abortions after six weeks to take effect as legal challenges proceed. In a case set for December 1, asking the Mississippi court to dismiss the 1973 case to end federal abortion rights that recognized them, Roe v. Wade.
There was no discussion of abortion in Tuesday’s argument itself, suggesting that the case focused on the peculiarities of Kentucky politics more than the future of reproductive rights.
Democrat Andy Beshear was attorney general in April 2018, when Republican Gov. Matt Bevin signed a measure outlawing dilation and evacuation, the most common abortion procedure in the second trimester.
When the state’s only abortion clinic in Louisville, EMW Women’s Surgical Center, filed suit, Beshear’s office dismissed the case, leaving the defense of the law to Bevin’s secretary of health and family services.
Some 10 states have passed similar restrictions on the procedure, in which a physician uses suction and instruments to remove fetal material through a patient’s dilated uterus. Those laws have been struck by federal courts for violating Supreme Court precedents that protect women’s right to terminate a pregnancy prior to embryo viability.
Kentucky’s version was no exception. In May 2019, a federal district judge in Louisville found it unconstitutional. The state appealed to the Sixth U.S. Circuit Court of Appeals in Cincinnati.
While the appeal was pending, Mr Beshear ousted Mr Bevin from the governor’s office and Daniel Cameron, a Republican, won the attorney general race in the November 2019 elections. The Beshear administration continued to defend the law before the Sixth Circuit, but after losing in front of a three-judge panel in June 2020, it declined to appeal further.
Mr Cameron then sought to intervene in the case, intending to ask the full Sixth Circuit or the Supreme Court to review the panel’s decision. The Sixth Circuit turned him down, finding that the Attorney General’s office had waited too long to intervene.
“What we want as Kentuckians is a fail-safe, a fail-safe that if a state official enforcing the state’s law says, ‘I’m not going to appeal further,’ the Kentucky attorney The general can come to the Commonwealth and say, ‘No, the Commonwealth wants to go ahead,’ Mr Cameron’s lawyer Matthew Kuhn told the judges on Tuesday.
More than most judges, Justice Sonia Sotomayor was skeptical.
If the Attorney General “had an opportunity to remain in litigation and decided to walk out and bind himself to the decisions of the Secretary … misused?” he said.
Alexa Colby-Molinas, an American Civil Liberties Union attorney representing the clinic, said Mr Cameron should be held for legal statements when Mr Beshear held that position.
“A successor in office is bound by the conditions and decisions made against his predecessors. It does not matter if a political party is changed,” she said.
But Justice Stephen Breuer said the partisan switch was relevant.
“First of all, Republicans are in [the governor’s office]So, the Democrats are in, and they have different views on the abortion law,” he said. “If there’s no prejudice against anyone, and I can’t see where, why can’t he come and defend the law.” Can you?” Justice Breyer said.
The verdict in Cameroon v EMW Women’s Surgical Center is expected by June.
write to Jess Bravin at [email protected]