Police officers erected barricades outside the US Supreme Court in Washington, DC on Tuesday, October 12, 2021.
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The Supreme Court on Tuesday examined a Republican attorney general’s motion to defend a restrictive abortion law in Kentucky, with some Liberal justices sounding skeptical that a lower court rightly denied that motion for intervention.
The case isn’t the only abortion-related battle that the court, stacked 6: 3 with Conservative judges, will handle on that term. The court rushed into the polarizing issue when it voted 5: 4 not to block a Texas law that bans most abortions after just six weeks of pregnancy. And the judges will hear arguments on December 1st in a crucial case in which the right to abortion comes before the Roe v. Wade’s ascertained fetal viability is in question.
Kentucky law, HB 454, would largely prohibit abortions performed using the “dilation and evacuation” procedure, the most common method used for second trimester pregnancies. It went into effect in 2018, but a district court ruled it unconstitutional and an appeals court upheld that ruling.
The Kentucky Minister of Health chose not to appeal the decision again – but Daniel Cameron, the state’s Republican attorney general, tried to step in to seek another hearing in defense of the law. The U.S. Sixth District Court of Appeals declined the offer, saying Cameron’s motion was late.
Kentucky Attorney General Daniel Cameron stands on stage in an empty Mellon Auditorium as he addresses the Republican National Convention on August 25, 2020 in Washington, DC.
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In the petition to the Supreme Court to consider the case, Cameron’s attorneys argued that the attorney general has “not only the power but also the duty” to intervene when another civil servant refuses to defend state law. He calls on the Supreme Court to overturn the Court of Appeal’s judgment and send the case back for further consideration.
The Surgical Center’s reply replied that Cameron’s offer to intervene was invalid, in part because the Attorney General’s Office had previously agreed to be bound by the outcome of the case.
Oral arguments on Tuesday centered not on the merits of the Kentucky Abortion Act, but on whether Cameron should be allowed to intervene after the appeals court verdict and the exit of the rest of the state’s government.
“If nobody’s prejudiced and I can’t see where it is, why can’t they just come in and defend the law?” Judge Stephen Breyer asked an attorney representing EMW Women’s Surgical Center, Kentucky’s only licensed abortion company, against Cameron.
“Well, he can lose,” said Breyer, “and he can lose for the reasons you give. But I don’t see why he can’t when Kentucky allows him to argue why he can’t … that Argument?”
Clinic volunteer escorts await patients outside the EMW Women’s Surgical Center in Louisville, Kentucky, USA on Tuesday, September 28, 2021.
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Breyer later said he might be confused about the facts of the case. But Judge Elena Kagan, another Liberal, took up the point that much of the conflict was due to the fact that the Kentucky leadership had switched parties during the litigation.
Then-Gov. Matt Bevin, a Republican, signed HB 454 in March 2018. When the operations center filed a lawsuit shortly thereafter, it named then-Attorney General Andy Beshear, a Democrat, as an accused, but his office was soon released from the case. Later, when the case was appealed, Beshear was elected governor of Kentucky and Cameron was elected attorney general. The state health minister, who was still involved in the lawsuit, defended the law until after the appeal ruling when he said he would no longer do so.
Cameron’s attorneys told the court that the attorney general attempted to intervene within two days of the hearing that the secretary would stop defending the law.
“There’s a real way that it seems to play a big role. I mean, that’s creating the problem here of no one defending state law,” Kagan said.
“And I think what Justice Breyer said is, ‘Geez, that would be an extremely tough jurisdiction rule,'” if no one was ready to defend the law, even though there are parts of the Kentucky government that still want it the law defended is called them.
American Civil Liberties Union attorney Alexi Kolbi-Molinas responded that “hard results will not change whether or not a jurisdiction rule is imposed”.