Bloomberg Law
Oct. 12, 2021, 5:12 PM

Top Court Signals Kentucky Official Can Defend Abortion Curb (1)

Greg Stohr
Greg Stohr
Bloomberg News

U.S. Supreme Court justices signaled they are inclined to let Kentucky’s Republican attorney general take over the defense of a law that would sharply restrict abortion after the 15th week of pregnancy.

Hearing arguments in what will be a prelude to a bigger abortion fight later this year, the justices suggested skepticism toward a federal appeals court’s conclusion that Kentucky Attorney General Daniel Cameron waited too long to try to get involved. The appeals court struck down the law and then barred Cameron from intervening in order to seek reconsideration from a larger panel of judges.

Justices from across the court’s ideological spectrum voiced concern that, unless Cameron can take part, no state official will have authority to keep defending the law. Cameron sought to intervene after Health and Family Services Secretary Eric Friedlander, an appointee of Democratic Governor Andy Beshear, decided not to pursue the case further.

“Once the secretary is out of it, Kentucky maybe ought to be there in some form, and the attorney general is the one that wants to intervene,” Chief Justice John Roberts said.

Read more: The view from the abortion fight’s front lines

The case is the opening act in a Supreme Court term that could eviscerate the constitutional right to abortion. In December the court will consider a Mississippi bid to overturn Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide. The high court also could be asked again to intervene in a fight over a Texas law that bans abortion after six weeks of pregnancy.

The Kentucky law would effectively ban the most common abortion technique used after the 15th week of pregnancy. The 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.

Post-Election Flip

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 high court case is the product of a political changeover in Kentucky in 2019, when 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, the newly appointed health secretary, initially decided to keep defending the law -- bringing in lawyers from Cameron’s office to argue the case -- but decided to abandon the case after the appeals court ruled.

Justice Stephen Breyer, one of three Democratic-appointed justices, questioned why Cameron shouldn’t be allowed to take over for Friedlander.

“If there’s no prejudice to anybody -- and I can’t see where there is -- why can’t he just come in and defend the law?” Breyer asked.

‘Extremely Harsh’

EMW’s lawyer, Alexa Kolbi-Molinas of the American Civil Liberties Union, argued that each attorney general “stands in the shoes of his predecessor,” adding, “it doesn’t matter that there’s been a political party change.”

But that argument hit resistance from Justice Elena Kagan, who said the election had made a “real-world” impact on the case.

“I think what Justice Breyer was saying is: ‘Gosh, that would be an extremely harsh jurisdictional rule, or at least a counterintuitive rule, if it ended up in a place where nobody was there to to defend Kentucky’s law, even though there are significant parts of Kentucky’s government that still want its law defended,’” Kagan said.

Kentucky Principal Deputy Solicitor General Matthew Kuhn, representing Cameron, argued that the attorney general “merely accepted a handoff for another state official to exhaust all appeals.”

Should the Supreme Court let Cameron intervene, the fate of Kentucky’s law could hinge on the Mississippi case, which centers on the state’s ban on abortion after 15 weeks. The high court is scheduled to decide both cases by late June.

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

(Updates with excerpts from arguments starting in 12th paragraph.)

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Greg Stohr in Washington at

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Elizabeth Wasserman at

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