The Supreme Court ruled Thursday that the Republican Attorney General of Kentucky could intervene to defend the state’s abortion law, overturned by a federal appeals court after the Democratic governor refused to file further appeals.
The issue in the case was procedural, and the court did not consider the constitutionality of the abortion law. In recent months, the court allowed a Texas law banning most abortions after six weeks to take effect and heard arguments in a Mississippi case for that state’s 15-week ban.
Questions from conservative judges in the Mississippi case indicated that they may be preparing to overturn the 1973 Roe v. Wade decision, which established the constitutional right to abortion.
Thursday’s ruling in Cameron v. EMW Women’s Surgical Center, #20-601, dealt with a Kentucky law that claimants say effectively prohibited the most common method of second-trimester abortion, dilation and evacuation.
The case began in 2018 when the state’s only abortion clinic and two doctors sued various government officials to challenge the law. At the time, State Attorney General Andy Beshear, a Democrat, said his office was not responsible for enforcing the law and entered into an agreement to drop the case against him, agreeing to abide by the final decision and reserving the right to appeal.
The state health secretary, appointed by the Republican governor, defended the law in court. The federal trial court struck down the law, saying it ran counter to Supreme Court precedent. The health minister filed an appeal, but the attorney general did not.
As the case moved forward, the political landscape of Kentucky changed. Mr. Beshear, who was Attorney General, was elected Governor. Daniel Cameron, a Republican, was elected attorney general.
Mr. Beshear appointed Eric Friedländer as the new Minister of Health, who continued to defend the law on appeal. But after a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati upheld the trial judge’s decision, Mr. Friedlander refused to seek a retrial in the full court of appeals or the Supreme Court.
Mr. Cameron, the new Attorney General, tried to intervene in the appellate court, saying he had the right to defend the law. The Court of Appeal denied his application, ruling that it arrived too late.
Judge Samuel A. Alito, Jr., writing for the majority, said the appellate court was wrong.
“The state’s ability to defend its laws in federal court should not be easily curtailed,” he wrote. “Respect for state sovereignty must also take into account the power of the state to structure its executive branch in such a way that several officials can defend their sovereign interests in federal court.”
Only Judge Sonia Sotomayor disagreed. “I fear that today’s decision will open the floodgates for government officials to avoid the consequences of judicial decisions made by their predecessors from different political parties,” she wrote, “undermining finality and frustrating long-held expectations of both the courts, the parties, and the public. ”
In an argument last week in a case that poses a similar issue, Judge Stephen J. Breuer, apparently forgetting that the court has not yet ruled in the Kentucky case, appears to have revealed how it will be delivered.
“Very similar to what we just resolved in the Attorney General case,” he said. “You know, it was a different party. What was it, Kentucky?