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Supreme Court green-lights Kentucky AG’s defense of abortion law 

The decision marks a big leg up for a Kentucky law banning abortions after 15 weeks.

WASHINGTON (CN) — Kentucky’s attorney general can intervene to fight for a law that would ban abortions after 15 weeks, the Supreme Court ruled 8-1 Thursday. 

The law known as House Bill 454 targets the most common method of performing an abortion in the second trimester of pregnancy — a procedure known in the medical community as D&E, short for dilation and evacuation, but which abortion opponents term as fetal dismemberment. While HB 454 does not ban the practice altogether, it would force providers to kill the fetus before the procedure — a step that experts have testified could endanger the life of the mother. 

After a federal judge ruled the law unconstitutional, and the Sixth Circuit affirmed, a change in political administrations installed a Democrat as secretary of state. When that official opted to no longer fight for the law, however, Kentucky's new Republican attorney general, Daniel Cameron, moved to intervene. 

Opposing his appeal is EMW Women’s Surgical Center, the last abortion provider in the state. 

While the case has large implications for abortion, the justices spent the bulk of oral arguments focused on the technical matter of the attorney general's standing.

Deputy Solicitor General Matthew Kuhn, representing Cameron, urged the justices to rely on 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. 

The abortion providers meanwhile argued that Cameron's appealed is untimely — a proposition that Justice Samuel Alito found too narrow in the majority opinion Thursday. 

“This argument fails for the simple reason that no provision of law limits the jurisdiction of the courts of appeals in the way respondents suggest,” Alito wrote. “We do not read a statute or rule to impose a jurisdictional requirement unless its language clearly does so.” 

Abortion providers noted Thursday that the law will remain blocked while the case proceeds but said the ruling allows an “eleventh-hour attempt to revive an abortion ban that two courts have already held unconstitutional.” 

“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,” Alexa Kolbi-Molinas, senior staff attorney with the ACLU Reproductive Freedom Project and lead counsel for EMW Women’s Surgical Center, said in a statement. “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. But this fight is not over and we’ll continue doing everything in our power to protect each person’s ability to get an abortion, no matter where they live.”

Justice Sonia Sotomayor wrote the lone dissent Thursday, warning that the court had created a slippery slope. 

“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,” the Obama appointee wrote. 

Cameron praised the ruling saying he would advance the “important pro-life law” in the Sixth Circuit. 

“The court’s ruling is a victory for the rule of law,” Cameron said in a statement. “The court found that our office is the fail safe for defending the Commonwealth’s laws when they come under attack.  As the court noted, we had a strong interest in stepping in to defend this important law after the Beshear administration’s ‘secretary for Health and Family Services elected to acquiesce.’”

Without the jurisdictional argument, Alito determined that what is left is a mandatory-claims-processing rule. He said parties are generally permitted to appeal judgments, but a nonparty bound by the same judgment should be able to appeal as well. Alito also insisted that the court was not creating a general rule giving nonparties the right to appeal judgments. 

“When a non-party is bound by a judgment for this reason, it is hard to see why the non-party should be precluded from seeking intervention on appeal if the agreement preserves that opportunity,” Alito wrote. 

Cameron argued that he had a legal interest in defending the law to defend state sovereignty. The court found that, while the secretary for health and family services had the authority to defend the law, that authority was shared with the attorney general. 

“Indeed, it is the attorney general who is deemed Kentucky’s ‘chief law officer’ with the authority to represent the Commonwealth ‘in all cases,’” Alito wrote. 

Alito said Congress recognized the right of states to defend their laws in federal court. 

“Even if this provision is not directly applicable in this case because the secretary for Health and Family Services was still a party when the intervention motion was filed, it nevertheless reflects the weighty interest that a State has in protecting its own laws,” Alito wrote. “The way in which Kentucky divides executive authority and the unusual course that this litigation took should not obscure the important constitutional consideration at stake.” 

Justice Clarence Thomas wrote a concurring opinion in which he said Cameron was not a party in the district court’s judgment so he could not appeal the judgment in the way abortion providers claim. 

“The Office of the Kentucky Attorney General was not a named ‘party’ to the District Court’s final judgment,” Thomas wrote. “The attorney general, accordingly, could not notice an appeal from that judgment under Rules 3 and 4. And because the attorney general could not appeal the District Court’s judgment, Attorney General Cameron moved to intervene and pursue ‘the requisite method for a nonparty to become a party to a lawsuit.’”

Sotomayor said she does not disagree with the majority’s jurisdictional holding but instead disagrees with the court of appeals for denying Cameron’s motion to intervene as an abuse of discretion. She also criticizes the court for failing to recognize a shift in positions by the attorney general. 

“All agree that States and their authorized officials have substantial sovereign interests in defending their laws,” Sotomayor wrote. “The Office of the Attorney General, however, previously represented that it had no interest in these proceedings.” (Emphasis in original.)

The opinion continues: “Respect for state sovereignty does not entitle a state official to evade these well-established consequences. Given the attorney general’s change in position and the deferential standard of review, the Court of Appeals did not abuse its discretion by denying his motion for intervention.”

Noting that it is hardly a novelty for offices to changed hands in the middle of lawsuits, Sotomayor says this is the point of voting. 

“Elections have consequences not just for the public but also for state officers who may find themselves bound by strategic litigation choices made by their predecessors in office,” Sotomayor wrote. “Shifts in the political winds do not support a special carveout to longstanding principles of estoppel.” 

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