The Supreme Court appeared willing Tuesday to allow Kentucky’s Republican attorney general to defend restrictions on abortion that two courts have found unconstitutional.
“The deck is shuffled again after an election,” Chief Justice John G. Roberts Jr. said during oral arguments Tuesday. “And the question is whether you want to preclude the state from participating in the litigation that is still ongoing” in a manner that denies the state any representation.
In a Supreme Court term in which abortion is likely to receive top billing, Cameron v. EMW Surgical Center is definitely the undercard. The justices are not considering the merits of Kentucky’s law, which would mostly outlaw dilation-and-evacuation abortion after 13 weeks from the last menstrual period.
In fact, neither of the lawyers in the case — Matthew F. Kuhn representing Cameron and ACLU lawyer Alexa Kolbi-Molinas, representing the clinic — even mentioned the word abortion.
Instead, the debate is over which government official gets to decide enough is enough now that the law has lost in federal district court and then before a panel of the U.S. Court of Appeals for the 6th Circuit.
And the commonwealth’s divided state government plays a large role.
The law was passed by the Kentucky legislature in 2018 and signed by then-Gov. Matt Bevin, a Republican. EMW, a clinic in Louisville, filed suit, saying the law was unconstitutional because it placed an undue burden on the right to abortion before fetal viability.
Then-Attorney General Andy Beshear, a Democrat, was named as a defendant. But he pulled out of the suit, saying he would abide by the decision of the courts. The state’s defense of the law fell to a member of Bevin’s cabinet, the health and family services secretary.
The district court ruled the law unconstitutional. And as the issue was before the appeals court, Beshear defeated Bevin at the polls and became governor. When the appeals court agreed with the lower court in June 2020, Beshear’s health secretary said that was enough. He declined to ask the full appeals court to reconsider the issue or to take it to the Supreme Court.
Enter Republican Cameron, who had won the race to replace Beshear as attorney general. He attempted to intervene in the case and continue to defend the law. But the appeals court said it was too late, citing Beshear’s decision to stay out of the case.
Kolbi-Molinas, representing the clinic, said that should be the end of it. Attorneys general “stand in the shoes” of their predecessors, she said, and must abide by the decisions made.
“It is not a violation of Kentucky’s sovereign authority to hold him to that decision,” she said. As the court has recognized before, she added, “the decision not to appeal is as much an exercise of sovereign authority as the decision to appeal.”
But Kuhn said Cameron was just taking up the defense that the Beshear administration had decided to abandon.
“The attorney general, on behalf of the commonwealth, merely accepted a handoff for another state official to exhaust all appeals,” he said.
The justices seemed to agree, with some worrying that agreeing with the lower court would mean Kentucky had no representative.
“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?” asked liberal Justice Stephen G. Breyer.
Justice Elena Kagan, a fellow liberal, said the “real world”consequence of the election mattered.
“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 defend Kentucky’s law, even though there are significant parts of Kentucky’s government that still want its law defended,” she said.
Whether it will make much difference in the long run will depend the court’s decision in other abortion cases. It is still wrestling with what to do about Texas’s ban on abortion after six weeks and its unique enforcement strategy of empowering private citizens to bring suits against doctors and others who aid and abet abortions after that.
And the court on Dec. 1 will consider Mississippi’s law banning most abortions after 15 weeks. The court is being urged to abandon its decision in Roe v. Wade that protects the right to abortion before the fetus reaches viability, generally 22 to 24 weeks.