Supreme Court signals willingness to allow Kentucky attorney general to defend state's abortion law
WASHINGTON – When it comes to the explosive legal battle over abortion, Texas and Mississippi have received most of the attention lately. But the first abortion dispute to make its way to the Supreme Court for oral argument this year dealt with Kentucky.
Most of the justices Tuesday appeared to be leaning toward allowing Kentucky Attorney General Daniel Cameron to defend a 2018 law banning dilation and evacuation abortions, a procedure commonly performed in the second trimester of pregnancy.
At issue for the high court is a procedural question: Whether Cameron, a Republican, may defend the law after Gov. Andy Beshear, a Democrat, said his administration no longer would. If the answer is "yes," that would allow Cameron to appeal a ruling from the U.S. Court of Appeals for the 6th Circuit that struck down the law as unconstitutional.
Those looking for a sign Tuesday about how the Supreme Court may be thinking about abortion broadly were likely disappointed. Neither the provisions of the Kentucky law nor even the word "abortion" came up until more than 45 minutes into the oral arguments. Instead, the justices stuck to Cameron's desire to defend the law.
"Why can't he just come in and defend the law?" Associate Justice Stephen Breyer, the court's most senior liberal, asked the attorney for the abortion clinics. "I don't see why he can't – if Kentucky law allows him to make the argument, why can't he make the argument?"
Associate Justice Brett Kavanaugh returned to the courtroom Tuesday for the first time since receiving a positive COVID-19 test earlier this month. Kavanaugh had taken part in arguments remotely last week.
Kentucky is one of a dozen states that have attempted to ban the "D&E" procedure, according to the Guttmacher Institute, a research group that supports abortion rights. In Kentucky's case, the law was signed by Republican Gov. Matt Bevin in 2018. After Beshear took over in 2019, his administration declined to appeal the 6th Circuit's ruling striking down the law.
Enter Cameron, the state's independently elected attorney general, who asserted that if Beshear wouldn't defend the law he had an obligation to do so. EMW Women’s Surgical Center countered that, under procedural rules in federal court, Cameron should have sought to intervene much earlier in the case. The clinic also noted that Beshear, when he was serving as the state's attorney general, removed the office as a party in the case.
Now, the clinic said, the office suddenly wants back in.
But once the Beshear administration decided it would no longer defend the law, Chief Justice John Roberts said, "Kentucky maybe ought to be there in some form and the attorney general is the one that wants to intervene."
Alexa Kolbi-Molinas, representing the clinic and noting that Cameron did not seek to jump back into the case until after the appeals court had ruled, countered that "intervention law incentivizes early intervention and penalizes late intervention."
Kentucky's case comes to the Supreme Court as abortion has featured prominently on its docket and as advocates on both sides of the issue are questioning the court's commitment to its landmark Roe v. Wade decision in 1973 that created a constitutional right to the procedure. The justices will hear arguments in December in a challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy.
Several lawsuits over Texas' ban on abortions after six weeks of pregnancy are also percolating in federal courts, including a suit by the Justice Department that is pending in the New Orleans-based U.S. Court of Appeals for the 5th Circuit.
The justices ducked questions about prohibitions on the "D&E" procedure in 2019, declining to let Alabama defend its ban after the U.S. Circuit Court of Appeals for the 11th Circuit struck it down. Opponents of the method, which involves removing a fetus with instruments, call it fetal "dismemberment." Abortion rights groups say it is the safest and most common second-trimester abortion procedure.
Cameron asked the Supreme Court to consider those underlying constitutional issues. But even if the high court doesn't address them, Cameron said the case raises important questions about when a state attorney general may step in to defend a law in court – and that may be particularly important when the political party controlling that office changes.
State lawmakers, Cameron told USA TODAY "have empowered the agency's office to be a failsafe, if you will, regardless of what other offices might do, whether it's the governor's office or any branch of the executive administration that might decide that they don't want to defend the law."