Supreme Court Lets Kentucky GOP Official Defend Abortion Curbs

The U.S. Supreme Court ruled that Kentucky’s Republican attorney general can take over the defense of a strict abortion law after the state’s top health official, a Democrat, stopped defending the measure once an appeals court struck it down.

Voting 8-1, the justices rejected a federal appeals court’s conclusion that Kentucky Attorney General Daniel Cameron waited too long to get involved. The case centered on procedural issues, not substantive questions of abortion rights.

Abortion Fight’s Front Line: Fear, Shouts and the Supreme Court

The law would effectively ban the most common abortion technique used after the 15th week of pregnancy. Cameron sought to intervene after the appeals court declared the law unconstitutional and Kentucky Health and Family Services Secretary Eric Friedlander decided not to pursue the case further. Cameron can now seek reconsideration of the appeals court ruling from a larger panel of judges or appeal to the Supreme Court.

Writing for six justices, Justice Samuel Alito said that “a state’s opportunity to defend its laws in federal court should not be lightly cut off.”

Justice Sonia Sotomayor was the lone dissenter. Justices Elena Kagan and Stephen Breyer said they agreed with the result but not all of Alito’s reasoning.

The case is part of a Supreme Court term that could eviscerate the constitutional right to abortion. The Kentucky law’s fate ultimately could hinge on a separate case over Mississippi’s ban on abortion after 15 weeks of pregnancy. Arguments Dec. 1 suggested the justices were poised to uphold the Mississippi law and potentially overturn Roe v. Wade, the 1973 ruling that legalized abortion nationwide.

Procedure Banned

The disputed procedure, known as dilation and evacuation, or D&E, involves removing the fetus in a way that typically causes the tissue to separate.

The law doesn’t explicitly mention D&E but bars “dismemberment” of the fetus unless it is already dead. The measure makes an exception for cases of medical emergency.

Cameron says providers could use one of three techniques to cause fetal death before performing the abortion, but abortion-rights advocates says those methods aren’t feasible and would add needless risk. The law is being challenged by Louisville-based EMW Women’s Surgical Center, the only Kentucky clinic where patients can get an abortion after 14 weeks of pregnancy, as measured by the last menstrual period.

The law is part of an array of abortion restrictions in the state. Kentucky is one of 12 states with so-called trigger bans that would outlaw abortion entirely if the Supreme Court overturns Roe. The state also has a law, currently on hold, that would bar abortion after six weeks of pregnancy.

The high court case was the product of a political changeover in Kentucky in 2019, when Andy Beshear was elected governor and Cameron was elected to succeed Beshear as attorney general, flipping party control of both offices.

As attorney general, Beshear had opted not to defend the law, leaving that to an official appointed by then-Governor Matt Bevin, a Republican. In asking to be dismissed as a defendant in the case, Beshear agreed to be bound by the judgment in the case.

By the time the case was before the 6th Circuit Court of Appeals, the election had taken place. Friedlander, appointed by Beshear as the new health secretary, initially defended the law -- bringing in lawyers from Cameron’s office to argue the case -- but decided to abandon the case after the appeals court ruled.

The case is Cameron v. EMW Women’s Surgical Center, 20-601.

(Describes law, litigation starting in seventh paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Jon Morgan

© 2022 Bloomberg L.P. All rights reserved. Used with permission.