Supreme Court signals it will side with Kentucky AGs bid to defend

The Supreme Court on Tuesday considered a Republican attorney general’s bid to defend a restrictive Kentucky abortion law, with some liberal justices sounding skeptical that a lower court was right to reject that request to intervene.

The case is not the only abortion-related battle that the court, stacked 6-3 with conservative justices, is set to consider this term. The court already waded into the polarizing issue when it voted 5-4 not to block a Texas law banning most abortions after as early as six weeks of pregnancy. And the justices will hear arguments Dec. 1 in a pivotal case challenging the right to an abortion before fetal viability established by Roe v. Wade.

The Kentucky law, H.B. 454, would largely ban abortions performed with the “dilation and evacuation” procedure, the most common method used for second-trimester pregnancies. It was signed into law in 2018, but a district court declared it unconstitutional and an appeals court upheld that ruling.

Kentucky’s health secretary opted not to pursue further appeal of the decision — but Daniel Cameron, the state’s Republican attorney general, tried to intervene to seek another hearing in defense of the law. The U.S. Court of Appeals for the Sixth Circuit rejected that bid, saying Cameron’s motion came too late.

In the petition for the Supreme Court to consider the case, attorneys for Cameron argued the attorney general “has not only the power, but also the duty” to jump in when another state official declines to defend state law. He is asking the high court to vacate the appeals court’s judgment and send the case back for further consideration.

The surgical center’s brief in reply countered that Cameron’s bid to intervene is invalid, in part because the attorney general’s office had previously agreed to be bound by the outcome of the case.

Tuesday’s oral arguments focused not on the merits of the Kentucky abortion law, but rather hinged on whether Cameron should be allowed to intervene after the appellate court delivered its ruling and after the rest of the state’s administration had opted out.

“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?” Justice Stephen Breyer asked a lawyer representing EMW Women’s Surgical Center, Kentucky’s only licensed abortion provider, against Cameron.

“Now, he may lose,” Breyer said, “and he may lose for the reasons that you say. But I don’t see why he can’t, if Kentucky allows him to make the argument, why can’t he make the argument?”