Fight to limit abortion access in Kentucky focuses on AG’s standing

WASHINGTON (CN) — A full bench of justices sat together in person for the first time in two years Tuesday to tackle state-sovereignty claim that Kentucky's attorney general is wielding to all but ban abortions after 15 weeks. 

Kentucky Attorney General Daniel Cameron wants the court to allow him to reinstate House Bill 454, a law that would require a fetus to be dead before performing D&E abortion procedure, short for dilation and evacuation. Though it is the most common way to abort a fetus in the second trimester, abortion opponents have given the procedure a gruesome nickname, fetal dismemberment. Medical experts testify meanwhile that requiring the fetus to be dead before the procedure occurs could endanger the life of the mother. 

These issues did not even register Tuesday at oral arguments, where the court focused instead on the technical matter of whether the attorney general, a separately elected office, has the authority to appeal in place of the state's secretary of health. Due to a change in political administrations, the secretary is now a Democrat and has opted not to fight an injunction against HB 454 upheld by the Sixth Circuit.

“Why would we call it an abuse of discretion for a court of appeals, after it rendered its judgment, to say we don't really care what has happened in the political arena,” Justice Sonia Sotomayor grilled a deputy state solicitor general. “We don't want to be dragged into it. You agree to be bound by this judgment. You didn't appeal, even though you were a party. Are you telling me you're now willing to waive the sovereign immunity of the state? Because that's what it sounds like.” 

Deputy Solicitor General Matthew Kuhn argued that the Cameron was defending Kentucky’s sovereign interests and is simply picking up where Kentucky's last Republican health secretary left off.

Justice Amy Coney Barrett asked why the petitioner didn’t just intervene on behalf of the state — a move that would have waived the state sovereign immunity. 

“We wouldn't be even having this discussion if you had intervened on behalf of Kentucky,” the Trump appointee said. 

Kuhn said that was essentially what they did but they had just identified themselves as the agent of Kentucky to follow prior precedent. He disagreed that they would have to waive sovereign immunity when participating as an agent of the commonwealth. 

Much of Kuhn’s arguments surrounded the “two hats” theory, which says the attorney general is playing a different role in the appeal than he did when he agreed to be bound by the judgment. Justice Elena Kagen questioned this theory and said the secretary’s role proves two-hat theory doesn’t work because the secretary was representing the state’s interests and was sued in that capacity. 

“The secretary was sued because he could enforce state law,” Kagan said. “He was obviously representing the state's interests. Nobody else was doing that. So the two seem completely intertwined, to me, and the secretary's role in the litigation prior to the attorney general's intervention motion proves that.” 

EMW Women’s Surgical Center, the state's last abortion provider, emphasized to the justices Tuesday that Cameron flouted his duty to appeal in a timely manner after agreeing to be bound by the final judgment.

“Intervention is not a revolving door that allows a party to agree to be bound, procure their dismissal, failed to appeal, and then gain reentry to the suit,” said ACLU attorney Alexa Kolbi-Molinas. 

In his questioning, Justice Stephen Breyer acknowledged the political back and forth involved in this case. 

“There have been a lot of party changes,” the Clinton appointee said. “First the Republicans are in, then the Democrats are in; they have different views on an abortion statute.” 

Breyer pushed Molinas on why Cameron could not defend the law. 

“The Sixth Circuit says this is unconstitutional, and somebody could have filed a defendant motion for rehearing, and then they could have tried to come here,” Breyer said. “But the secretary of state said I'm not going to do that because there had been a political party change. And so at that point, the attorney general says well ... nobody's going to defend this so I better. Is that what happened? Am I totally wrong?”

Following the arguments, Cameron told reporters he was hopeful and optimistic that the justices would rule in his favor. 

“For the court to take the risk on this case itself was a big step in terms of their willingness to strongly consider what we're asking for the ability to continue defense of this measure ... I thought the reception was very, very good,” Cameron said. 

ACLU attorney Andrew Beck said he thought the questions posed allowed his colleague to clear up misunderstandings about the case. 

“Listening back to Supreme Court arguments over the years, the justices are really trying to understand the law, understand the facts, and aren't always tipping their hand with the type of questions they focused on,” Beck said in a phone interview following the arguments.

This is not the only abortion case the court will hear this term. The justices are set in December to hear Dobbs v. Jackson Women’s Health, which carries 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. 

Before Barrett was appointed to succeed the late Justice Ruth Bader Ginsburg, the Supreme Court resolved its last major abortion case, June Medical Services LLC v. Russo, in a 5-4 ruling last year that struck down a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals.

Three years earlier, before a replacement had been chosen to replace the late Justice Antonin Scalia, the Supreme Court struck down a similar scheme in the Texas Whole Woman’s Health v. Hellerstedt. 

Cameron said Tuesday said that June altered the balancing test from Whole Woman’s Health.

“What the Supreme Court said in so many words is that perhaps it's not necessary to use that balancing test standard,” Cameron said in a press conference following the arguments. 

Tuesday marked the start of a second week of arguments at the court, now that it has returned to in-person hearings during the coronavirus pandemic. Justice Brett Kavanaugh participated in the last week's arguments remotely after testing positive for Covid-19 but was back in person Tuesday.

Follow @KelseyReichmann

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