WASHINGTON — The U.S. Supreme Court on Tuesday probed arguments about whether Kentucky Attorney General Daniel Cameron can defend a law restricting abortion that went into effect and was struck down in court before he became the state’s top law enforcement officer.
The case amounts to a technical debate over Cameron’s jurisdiction and whether he’ll have a shot in court to resurrect a law that would ban a specific surgical procedure used to end pregnancies.
The common second trimester procedure, known as “dilation and evacuation,” was banned by the Kentucky legislature in 2018. Courts then swiftly found the restriction contained in HB 454 unconstitutional.
Justices are not considering the substance of the anti-abortion law itself, but rather Cameron’s role in challenging its dismissal. It is the first abortion-related case being considered under the 6-3 conservative Supreme Court supermajority.
“When laws like this are challenged in court, they must be defended,” said Cameron. “My team was honored to argue before our nation’s highest court for the ability to continue defending this important law and to ensure that a state’s chosen representative can always defend its pro-life laws.”
Former Republican Gov. Matt Bevin signed the anti-abortion measure into law. But after defeating Bevin in 2019, Democratic Gov. Andy Beshear did not pursue the case to revive the statute. Kentucky Health Secretary Eric Friedlander had originally defended the law, but after the Sixth Circuit Court of Appeals ruled it unconstitutional, he accepted the decision.
Cameron then went to the Supreme Court to intervene, spurring the case of Cameron v. EMW Women’s Surgical Center, the only licensed abortion clinic in Louisville.
“The justices can choose to put an end to the attorney general’s attempts to force people to continue their pregnancies against their will – or allow him to intervene and open the door to his efforts to put this harmful state ban back into place,” said Jennifer Dalvern, the director of the Reproductive Freedom Project at the ACLU.
On Tuesday morning, justices appeared to deliberate whether it was prudent to permit someone from Kentucky’s government to advocate for a law duly passed by its legislature.
Justice Elena Kagan questioned whether it would be problematic if “nobody was there to defend Kentucky’s law even though there are significant parts of Kentucky that still want its law defended.”
But timing is also a factor being weighed by the justices. The 6th Circuit panel denied Cameron’s request simply because his request came “years” after the court rulings.
Counsel for EMW Women’s Surgical Center argued on Tuesday that since Cameron failed to launch his own timely appeal, he relinquished his opportunity for a hearing.
The Kentucky case has been largely overlooked at the national level, given the dramatic abortion restrictions recently imposed in Texas and Mississippi’s forthcoming foundational challenge to Roe v. Wade.
But Elizabeth Nash, a state policy expert for the Guttmacher Institute, said while the Kentucky case is “focused on seemingly arcane procedural questions, the real goal is to use any and all means to ban abortion.”
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