Kentucky AG Backing Abortion Law Heads to High Court

The state’s top lawyer wants to pick up the fight where Kentucky’s health secretary left off, but courts say his motion to intervene came too late.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — In a bid to revive so-called fetal demise abortion procedures that courts ruled unconstitutional, Kentucky Attorney General Daniel Cameron will fight at the U.S. Supreme Court for the chance to intervene.

The law Cameron hopes to reinstate says abortions where a fetus is dismembered in the womb past the 15-week mark can be performed only on a fetus that has died. Very standard in the second trimester, such procedures are known as dilation and evacuation or D&E for short.

EMW Women’s Surgical Center, the last abortion clinic in the state, went to court, naming the secretary of health was a defendant. At the time, that office was one held by a Republican appointed by Governor Matt Bevin, and they tapped the Attorney General’s Office to represent them.

A federal trial occurred in 2019, and U.S. District Judge Joseph McKinley ruled that Kentucky’s law placed an undue burden on women seeking abortions. Cameron took office a few months later, becoming the state’s first Republican attorney general since 1944. Meanwhile Bevin had lost re-election to Democratic Governor Andy Beshear.

After the Sixth Circuit affirmed an injunction for EMW, Beshear’s health secretary opted to drop further appeal. Cameron in turn moved to intervene. He says Kentucky law authorizes him to do so, but the Sixth Circuit said it is too late now for such a motion. The time to do so, it ruled, was back when he was representing the secretary.

Petitioning the Supreme Court now, Cameron proclaims that his exclusion from ongoing appeals bars him from fulfilling duties laid out in state law.

“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,” says the petition, signed by Kentucky Deputy Attorney General Barry Dunn. “Important for present purposes, this includes deciding for the Commonwealth whether to continue defending its laws on appeal.”

The justices in Washington granted certiorari this morning without comment, as is their custom. It is the only grant on the day’s order list.

On behalf of EMW, the opposition brief by American Civil Liberties Union Foundation attorney Andrew Beck says Cameron’s “sweeping rhetoric” cannot override the fact that the case does not involve the attorney general’s sovereign authority “but merely the routine application of the rules governing intervention, which apply equally to all parties.”

Beck says Cameron had seven months to intervene before the Sixth Circuit ruled on the case. During all that time, the attorney general had been aware that the sole party on appeal, and thus the sole party with decision-making authority over litigation matters, was the acting health secretary.

“Nor did the attorney general acknowledge that the decision to not pursue the third-party standing argument at any prior stage of the appeal was made by counsel who had themselves briefed and argued the appeal, and who prior to argument entered appearances as attorneys from the Attorney General’s own office,” Beck added.

In a statement Monday, Beck said that Cameron had demonstrated “he will stop at nothing to prevent people from making their own decisions about pregnancy.”

“Major medical associations have condemned harmful restrictions like the one at issue here and every court to consider a law like this has blocked it,” Beck said in a statement. “We will continue to work to make sure this ban never takes effect.”

Cameron emphasized that he has been defending the abortion restrictions since taking office and will continue to do so.

“This law reflects the conscience of Kentucky by banning the gruesome practice of live dismemberment abortions and it’s important that Kentuckians have a voice before our nation’s highest court,” Cameron said in a statement. “I was elected to provide that voice and we look forward to making our case to the Supreme Court.”

Five days after EMW prevailed at the Sixth Circuit last year, the U.S. Supreme Court struck down Louisiana abortion restrictions in the case June Medical Services LLC v. Russo.

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