- The Supreme Court on Tuesday considered a Republican attorney general’s bid to defend a restrictive Kentucky abortion law.
- Some liberal justices seemed skeptical that a lower court had the authority to deny a request to intervene.
- The court previously voted not to block a Texas law banning most abortions after six weeks of pregnancy, and it is set to hear arguments in the case challenging Roe v. Wade.
The Supreme Court on Tuesday considered a Republican attorney general’s bid to defend a restrictive Kentucky abortion law, with some liberal judges doubting that a lower court was right to deny a request to intervene.
The case isn’t the only fight related to abortion, with a 6-3 pile-up with conservative judges the court is set to consider at term. The court was already embroiled in a polarization issue when it voted 5-4 not to block a Texas law banning most abortions after six weeks of pregnancy. And judges will hear arguments on December 1 in a crucial case challenging the right to abortion before embryo viability established by Roe v. Wade.
Kentucky Law, HB 454, would largely ban abortions performed with the “dilation and evacuation” procedure, the most common method used for second trimester pregnancies. It was signed into law in 2018, but a district court declared it unconstitutional and an appeals court upheld that ruling.
Kentucky’s health secretary opted not to appeal the decision further — but the state’s Republican Attorney General Daniel Cameron tried to intervene in defense of the law for another hearing. The US Court of Appeals for the Sixth Circuit rejected that bid, saying Cameron’s proposal came too late.
In a Supreme Court petition to consider the case, Cameron’s lawyers argued that the attorney general has “not only the power, but also the duty” when another state official refuses to defend a state law. He is asking the High Court to vacate the appeal court’s decision and send the matter back for further consideration.
In response the surgical center’s short reply stated that Cameron’s bid to intervene was invalid, as the Attorney General’s office had previously agreed to be bound by the outcome of the case.
Tuesday’s oral arguments focused not on the merits of the Kentucky abortion law, but on whether Cameron should be allowed to intervene after the appellate court has delivered its ruling and the rest of the state’s administration exits .
“If there is no prejudice against anyone, and I can’t see where, why can’t he come and defend the law?” Justice Stephen Breyer asked an attorney representing EMW Women’s Surgical Center, Kentucky’s only licensed abortion provider, against Cameron.
“Now, he can lose,” said Breuer, “and he can lose for the reasons you say. But I don’t know why he can’t, if Kentucky allows him to argue, he Why can’t you make an argument?”
Breyer later said that he may be confused about the facts of the case. But another libertarian, Justice Elena Kagan, noted that much of the conflict stemmed from the fact that Kentucky’s leadership switched parties during the litigation.
Then-government Matt Bevin, a Republican, signed HB 454 into law in March 2018. When the surgical center filed suit shortly after, it named then-Attorney General Andy Beshear, a Democrat, as a defendant, but his office was soon dismissed from the case. Later, as the case was being appealed, Beshear was elected governor of Kentucky and Cameron was elected attorney general. The state health secretary, still involved in the trial, continued to defend the law until after the appellate ruling, when he said he would no longer do so.
Cameron’s lawyers told the court that the attorney general tried to intervene within two days of the hearing that the secretary would stop defending the law.
Kagan said, “There’s a real-world way in which it makes a lot of sense. I mean, who creates the problem here, which is nobody defending state law.”
“And I think what Justice Breyer was saying was, ‘Gosh, that’s going to be an extremely harsh judicial rule'” if no one was willing to defend the law, even though there are parts of Kentucky’s government that still Want to defend the law, he said.
The American Civil Liberties Union’s attorney, Alexi Colby-Molinas, replied that “drastic results do not change whether a judicial rule is enforced.”