The Supreme Court appeared inclined Tuesday to allow a Kentucky Republican attorney general step in to defend a controversial state abortion law after the state’s Democratic governor declined to continue doing so.
At issue in the case is a law that restricts a standard second-trimester abortion method known as “dilation and evacuation” that is used after 15 weeks of pregnancy. It was signed into law in 2018 but has so far been blocked by the courts.
The justices aren’t directly considering the constitutionality of the law. Instead, the dispute involves a procedural issue: whether the attorney general can revive a challenge to the law after other state officials said they would no longer pursue an appeal.
Kentucky is one of several states where attorneys general are elected – giving rise to potential conflicts if the governor of a state is of a different party. If the justices were to rule in favor of the state’s attorney general in the case at hand, abortion providers are concerned it would trigger more attempts to defend abortion laws when state officials are from opposing parties.
Tuesday’s arguments take place as the justices are already dealing with the issue of abortion on other fronts and Republican-led states are pushing to limit abortion rights across the country. Not only did a 5-4 court allow the Texas law to take effect pending appeal on September 1, but the court will hear arguments in December in a case where Mississippi is asking the Supreme Court to overrule Roe v. Wade.
The Kentucky law has already had a complicated procedural background.
It was signed by Gov. Matt Bevin, a Republican, and immediately challenged by EMW Women’s Surgical Center – and two of its doctors. They filed suit arguing the law imposed an undue burden on the right to pre-viability abortion. At the time, Attorney General Andy Beshear, a Democrat, said his office did not have the authority to defend the law and he agreed to be bound by the decision of the state’s secretary of state.
After a five-day bench trial, a district court blocked the law, and the case went to the federal appeals court. At the same time, however, an election occurred and Beshear became governor. In the same election, Daniel Cameron, a Republican, was elected attorney general.
After the appeals court affirmed the district court, the divide between the parties opened.
The Beshear administration said it would not appeal the decision.
That prompted Cameron moved to intervene in the case, attempting to revive the dispute, only to lose when the federal appeals court said his request came too late. The lower court emphasized that the office of the attorney general had already agreed to step out of the case, and now it was too late to try to step back in.
Cameron appealed to the Supreme Court. Kentucky’s Principal Deputy Solicitor General Matthew Kuhn told the justices that as a matter of Kentucky law, Cameron has the final say on whether to accept a decision that enjoined a state law, and that even under the previous attorney general, the office had preserved the ability of the attorney general to “participate in any appeal.”
He said Cameron “had the ability to protect Kentucky’s interests when it became unrepresented” and that the decision to defend the law represented a “hand off” from one state official to another.
In court Tuesday, justices on both sides of the political spectrum questioned the lower court’s decision, and seemed inclined to allow the case to continue.
The ACLU’s Alexa Kolbi-Molinas stressed that the office of attorney general had already spoken on the law and that Cameron stands in the “shoes of his predecessor.”
“Intervention is not a revolving door,” she said, and added that the lower court did not abuse its discretion by holding that Cameron’s attempt to get into the case came too late.
But Justice Stephen Breyer suggested that Cameron should at least be able to back to the lower court to make his case. “There have been a lot of party changes, ” Beyer noted.
And Chief Justice John Roberts said that even though the office of attorney general had said before the district court that it would not defend the law back then, it was “not necessarily” the “last word.” He noted that after the election, the change of parties reshuffled the deck. Justice Elena Kagan, too, expressed concern about “nobody” being able to defend the law.
Opponents of the law say that the Supreme Court’s decision will be limited to whether the appeals court was correct to block Cameron from reviving the dispute. But because the issue touches on abortion, they fear a loss could lead to Kentuckians losing access to abortion if Cameron were ultimately to prevail.