Abortion and the high court: Kentucky first up in a growing movement

WASHINGTON (CN) — The Supreme Court will hear arguments Tuesday from Kentucky Attorney General Daniel Cameron as he attempts to intervene on behalf of an ostensible ban against second-trimester abortions now that the state has disavowed the law in a newly Democratic administration.

House Bill 454, as the law is officially known, would bar a dilation and evacuation procedure — the country's most common method for abortion of a fetus in the second trimester — unless that fetus is already dead. In years of court challenges, experts have testified that ensuring the death of the fetus before such a procedure is dangerous to the mother.

The ACLU, representing EMW Women's Surgical Center, the last abortion clinic in the state, initially filed suit over the law against the secretary of health. After the Sixth Circuit affirmed an injunction for the clinic, the health secretary appointed by U.S. District Judge Joseph opted to drop further appeal. Rather than let the case die, however, Cameron in turn moved to intervene.

“So to summarize: Kentucky law makes the Attorney General the lawyer for the people of Kentucky with the power and the duty to represent the Commonwealth’s interests in court as he sees fit,” he said a petition for a writ of certiorari. “Important for present purposes, this includes deciding for the Commonwealth whether to continue defending its laws on appeal.”

Cameron is arguing that while this began as an issue about abortion, it is now about the state’s authority. ACLU attorney Andrew Beck called the contention a “red herring,” noting that the state has always had the opportunity to defend the law but choose not to. 

“The attorney general is trying to play games with the federal court in his sort of never-ending quest to stop people from being able to access abortion care in Kentucky,” Beck said. 

At oral arguments Tuesday, EMW will be represented by ACLU attorney Alexa Kolbi-Molinas. They maintain that the issue in this case is the attorney general’s inability to file his case in a timely manner and that the case should be pursued in district court, not the Supreme Court. “The Sixth Circuit expressly recognized that state attorneys general may appropriately intervene to defend their states’ laws, and merely applied the ordinary rule that they must do so, like anyone else, in a timely fashion,” EMW’s reply brief states.

Cameron and his attorneys were unable to comment before arguments on Tuesday but argue that EMW’s claim over jurisdiction “unravels” in the face of the attorney general’s state authority argument. “EMW ignores that the Attorney General moved to intervene in his capacity as the Commonwealth of Kentucky’s chosen agent to represent its sovereign interests in court,” Cameron argues in a reply brief. 

The justices granted certiorari in March, amid several other abortion-related cases that have been moving through the court simultaneously. Back in June, the Supreme Court voted 5-4 to strike down a strict Louisiana abortion law in the case June Medical Services LLC v. Russo. 

Cameron said he decided to petition following the decision in June Medical on the basis that the precedent “undercuts the panel’s decision to invalidate Kentucky’s law.” 

This case comes ahead of a bigger Mississippi case, Dobbs v. Jackson Women’s Health, which is slated for December oral arguments and has the possibility of overturning Roe v. Wade. Texas meanwhile instituted the most restrictive abortion ban in the country, prompting a slew of legal challenges. 

“Politicians are using really every trick in the book in their attempts to ban abortion and they're trying to recruit the Supreme Court to help them,” Beck said. “I think that's all sort of what links all of these cases and this is part of I think the larger national picture which is that the right to abortion is under attack in ways that we haven't seen since Roe v. Wade was decided decades ago.” 

Follow @KelseyReichmann

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