Supreme Court to decide if Ky. attorney general can intervene to defend abortion restrictions
By Robert Barnes,
Joshua Roberts Reuters
The Supreme Court will decide whether Kentucky’s Republican attorney general can defend the state’s restrictive abortion law against the wishes of its Democratic governor, the justices announced Monday.
The law would effectively ban after 15 weeks a common procedure used to terminate a pregnancy in the second trimester. A trial court struck down the law as unconstitutional and a divided panel of the U.S. Court of Appeals for the 6th Circuit agreed.
But the case, which the Supreme Court will hear in the term that begins in the fall, does not ask the court to reconsider its abortion jurisprudence.
[Supreme Court could review state abortion laws]
The question instead is whether the appeals court was right to bar Attorney General Daniel Cameron from taking over the case to further challenge the ruling. Health and Family Services Secretary Eric Friedlander, an appointee of Gov. Andy Beshear, decided against further defense of the law.
The law was passed in 2018 by Kentucky’s majority-Republican legislature and signed by the state’s governor at the time, who was a Republican.
“I promised Kentuckians that I would defend our laws all the way to the United States Supreme Court, and that’s what we’ve done,” Cameron said in a statement. “Since day one in office, we’ve fought to defend House Bill 454, even when the Beshear administration refused to defend it. This law reflects the conscience of Kentucky.”
Beshear, who as the state’s attorney general until 2019 had said he would not pursue additional defense of the law, said during his gubernatorial campaign that he would not defend abortion laws he considered unconstitutional.
The Supreme Court declined to take up a second issue presented by Cameron’s petition. It asked how the court’s ruling last term striking a restrictive Louisiana abortion law affects the legal reasoning the 6th Circuit used to block the Kentucky law. The 6th Circuit ruled just days before the Supreme Court’s decision in June Medical Services v. Russo.
[Supreme Court cites precedent in striking down Louisiana law]
“This case is only about whether the attorney general, after having sat on the sidelines of this lawsuit, can jump in at the last minute in an effort to revive an unconstitutional law,” said Andrew Beck, senior staff attorney at the American Civil Liberties Union Reproductive Freedom Project, which represented a Kentucky clinic challenging the law.
Beck said Cameron “has shown that he will stop at nothing to prevent people from making their own decisions about a 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.”
The Kentucky law places restrictions on the most common second-trimester abortion method, known as dilation and evacuation.
Jonathan Ernst
Reuters
Kentucky Attorney General Daniel Cameron delivers an address during the Republican National Convention.
Cameron and the Kentucky legislature refers to the procedure as a “gruesome live dismemberment” of a fetus. The law restricts the procedure after a certain point unless the fetus is already dead. Cameron argues that there are techniques available that would kill the fetus before performing the abortion.
But the courts found otherwise. They credited testimony from medical experts that said such options were too risky for the woman, and that to require them “effectively prohibits the most common second trimester abortion method.”
That would impose an undue burden on a woman’s right to an abortion before fetal viability, the appeals court said, noting that 10 other states had tried to impose such a requirement and “in every challenge brought to date, the court has enjoined the law.”
Antiabortion activists are hoping that a changed Supreme Court will alter that governing jurisprudence.
President Donald Trump said overturning Roe v. Wade was a priority when he chose three justices for the court: Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. Kavanaugh and Barrett could be particularly important because they replaced two justices supportive of abortion rights, Anthony M. Kennedy and Ruth Bader Ginsburg, respectively.
The court has been considering for months whether to take up a case that would squarely confront that decision. It still has not said whether it will review a Mississippi law that bans almost all abortions after 15 weeks of pregnancy.
Both a district judge and a panel of the U.S. Court of Appeals for the 5th Circuit said that could not be squared with the court’s precedents.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick Higginbotham wrote for the appeals court. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right but they may not ban abortions.”
The Kentucky case is Cameron v. EMW Women’s Surgical Center.
