Supreme Court rules GOP attorney general can defend Kentucky’s abortion restrictions

The Supreme Court ruled Thursday that Kentucky Attorney General Daniel Cameron can intervene in a lawsuit to defend the state’s restrictions on dilation and evacuation abortions.

In an 8-1 ruling, the high court said Kentucky’s attorney general has the right to intervene and defend the state law.

After the 2019 elections, Kentucky’s new Democratic governor, Andrew Beshear, replaced the state’s health secretary, who had been appointed by former Gov. Matt Bevin, a Republican.

The new health secretary, Eric Friedlander, declined to continue defending the abortion law in court, so Mr. Cameron, a Republican, opted to do so.

Pro-choice advocates claimed that he could not intervene and that if the law would allow the imposition of increasingly harsh abortion restrictions.

“When a non-party is bound by a judgment for this reason, it is hard to see why the non-party should be precluded from seeking intervention,” Justice Samuel A. Alito Jr., a George W. Bush appointee, wrote for the court.

Only Justice Sonia Sotomayor, an Obama appointee, disagreed with the ruling.

She said litigation must end at some point, and suggested that allowing officials to continue to fight legal battles would cause problems in the courts.

“I fear today’s decision will open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties, undermining finality and upsetting the settled expectations of courts, litigants, and the public alike,” Justice Sotomayor wrote in her dissent.

At issue was whether Mr. Cameron has a legal right to defend the law since two lower courts had struck it down as unconstitutional after Kentucky’s Health and Family Services secretary declined to appeal the case.

Kentucky passed legislation, known as House Bill 454, in 2018 regulating dilation and evacuation abortion, in which the fetus is dismembered in the womb.

The state law did not completely ban D&E abortions: It said the fetus must not be alive when being dismembered and the procedure could not be performed after 13 weeks of pregnancy.

EMW Women’s Clinic and abortion providers sued to challenge the law as unconstitutional. Lower courts sided with the providers, striking down the restriction.

The state’s health secretary declined to further appeal the case, but Mr. Cameron moved to defend the state’s interest in implementing the abortion restrictions.

EMW opposed that move, and the U.S. Circuit Court of Appeals for the 6th Circuit again sided with the abortion providers, prompting Mr. Cameron to take the case to the high court.

Abortion has become a top issue percolating in courts throughout the country in recent months.

The justices are set to rule in a Mississippi case that directly challenges Roe v. Wade, the court’s 1973 precedent that granted women a right to an abortion up until a fetus is viable, which was between 24 to 28 weeks.

Mississippi passed a ban on abortion after 15 weeks of pregnancy, arguing that Roe is outdated.

Other conservative states, like Texas, have moved to pass increasingly strict laws.

Texas passed a law banning abortion after a fetal heartbeat is detected, which can occur as early as six weeks of pregnancy.

But the Texas law is unique in that it allows private citizens to sue abortion providers who violate the legislation. It does not give state officials the power to patrol or criminalize violators.

The Supreme Court has allowed the Texas law to be enforced while abortion providers challenge it in the lower courts.

Pro-life advocates said the Supreme Court‘s ruling in favor of the Kentucky attorney general should be celebrated. 

“Brutal live-dismemberment abortions on babies with fully formed arms, legs, fingers and toes, even after the point when they can feel pain, show the true extremism of our nation’s status quo on abortion. Acting on the will of the people, Kentucky lawmakers passed legislation to stop this inhumane practice with overwhelming bipartisan majorities. As we await a decision in the Dobbs case that could restore the right of all states to protect countless unborn children and their mothers, pro-life champions in the states like Daniel Cameron are not waiting to lead and are more important than ever,” said Marjorie Dannenfelser, president of the Susan B. Anthony List. 

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.