Kentucky’s Republican attorney general should be allowed to continue to defend a state abortion law struck down as unconstitutional by lower courts after the state’s Democratic governor refused to do so, the U.S. Supreme Court ruled in an 8–1 decision on March 3.
Although Kentucky’s abortion law itself wasn’t at issue in the case, this is the court’s first opinion in an abortion-related case since Justice Amy Coney Barrett’s addition to the bench in October 2020 gave its conservative wing a 6–3 majority.
The high court examined only whether Kentucky Attorney General Daniel Cameron should be allowed to intervene in the case on behalf of his state after the trial court invalidated the law, and its decision was upheld by an appeals court.
Gov. Andy Beshear, a Democrat, had refused to defend the statute in court.
The U.S. Court of Appeals for the 6th Circuit turned down Cameron’s request to take over state representation in the case.
The case revolves around Kentucky’s 2018 ban on dilation and evacuation (D&E) abortions on unborn children.
After the Supreme Court hearing, Cameron described the procedure as “gruesome,” adding that “it rips the baby apart.”
Then-Gov. Matt Bevin, a Republican, signed House Bill 454, the Human Rights of Unborn Children Act, which stopped such abortions after 11 weeks of pregnancy and was subsequently enjoined by federal courts.
Cameron welcomed the Supreme Court’s ruling, calling it “a victory for the rule of law.”
“Today, the U.S. Supreme Court agreed. This is a ruling that many in the commonwealth [of Kentucky] have hoped for, and we will proudly continue to carry the mantle for this important pro-life law by going back to the 6th Circuit and litigating the case.
“The court found that our office is the fail-safe for defending the commonwealth’s laws when they come under attack.”
Oral arguments in the case Cameron v. EMW Women’s Surgical Center were heard Oct. 12, 2021. The respondent, EMW Women’s Surgical Center, in Louisville, is Kentucky’s only licensed abortion clinic.
In the document, Alito noted that “The importance of ensuring that States have a fair opportunity to defend their laws in federal court has been recognized by Congress.”
He wrote that the 6th Circuit panel erred by failing “to account for the strength of the Kentucky attorney general’s interest in taking up the defense of HB 454” when other state officials chose not to continue defending the statute.
“Paramount among the states’ retained sovereign powers is the power to enact and enforce any laws that do not conflict with federal law,” Alito wrote, adding that a state has a legitimate interest in perpetuating the enforceability of its own statutes.
“This means that a state’s opportunity to defend its laws in federal court should not be lightly cut off.”
Justice Sonia Sotomayor wrote a dissenting opinion, arguing that the majority’s holding in this case would promote uncertainty.
The Supreme Court has bent “over backward to accommodate the attorney general’s reentry into the case,” Sotomayor wrote.
“I fear today’s decision will open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties, undermining finality and upsetting the settled expectations of courts, litigants, and the public alike.”
“Politicians in Kentucky are working overtime to force people to continue pregnancies against their will, instead of doing what is best for the people they are supposed to serve,” she said.
“And it is not just in Kentucky.
“In Texas, most people are already being blocked from getting an abortion—a nightmare that could soon become reality for nearly half of this country, as the Supreme Court seems poised to gut or overturn Roe v. Wade.”
Meanwhile, the Supreme Court has yet to decide two separate cases that directly challenge abortion laws in Texas and Mississippi.
Oral arguments took place in the two cases on Nov. 1 and Dec. 1, 2021, respectively.
The Texas case, which has garnered intense media coverage, has led to boycotts and demands for the repeal of the state’s unique fetal-heartbeat abortion law that relies on citizen participation for enforcement.
A chain of abortion clinics argues the Texas statute violates Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), in which the Supreme Court discovered a constitutionally protected right to obtain an abortion before the fetus is viable, at around the 24-week mark.
The chain is also challenging the novel enforcement mechanism that relies on individuals filing lawsuits.
Mississippi’s only licensed abortion clinic is challenging the state’s Gestational Age Act, which allows abortions after 15 weeks’ gestation only for medical emergencies or severe fetal abnormality.
Citing Roe v. Wade, lower courts held the statute was unconstitutional.
