Supreme Court to see if Kentucky’s GOP Attorney General can defend restrictive abortion law

A man walks past the barbed wire and security fences that surround the U.S. Supreme Court in Washington on January 26, 2021.

Al Drago | Reuters

The Supreme Court said Monday that he will hear a request from the Kentucky Republican Attorney General to allow him to defend a state law that restricts a type of abortion process often targeted by conservatives.

Anti-abortion advocates have been hoping the Supreme Court, which now has a 6-3 majority of Republican-appointed judges, will restrict previous cases where the right to abortion is expanded.

However, the Kentucky case concerns a broader legal issue and is unlikely to have any further impact on laws that affect reproductive rights.

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The bill, known as HB 454, regulates “dilation and evacuation,” a common method of abortion often used in the second trimester. It was passed in 2018.

Kentucky’s only licensed abortion clinic, EMW Women’s Surgical Center, challenged HB 454. The clinic sued the Attorney General – who at the time was Democrat Andy Beshear – and the Secretary of State for Health and Family Services. The Minister of Health led the law’s defense after Beshear filed for release as a defendant.

A district court struck down the law. This decision was upheld by the 6th US Circuit Court of Appeals. The appeals court cited the 2016 Supreme Court’s Whole Woman’s Health v Hellerstedt case. During the argument, Republican Daniel Cameron succeeded Beshear as attorney general in Kentucky, and Beshear was elected governor.

Kentucky’s Minister of Health decided not to appeal the case after losing on the 6th Circuit. Cameron tried to intervene in the case to do so, but the appeals court denied his effort on the grounds that it was too late.

In his petition to the judges, Cameron argued that the appeals court’s rejection of his efforts “is an affront to state sovereignty”.

“The Sixth Circuit closed the doors of the courthouse to the very person empowered under Kentucky law to represent the Commonwealth of Nations in court,” Cameron wrote on the file.

Cameron also argued that an appeal based on the June Medical Services Supreme Court ruling against Russo would likely be successful in 2020. June Medical Services may have narrowed the scope of the court’s earlier decision regarding the health of whole women.

The EMW Women’s Surgical Center, represented by the American Civil Liberties Union, had asked the judges not to take the case.

In a legal letter, the clinic wrote that the attorney general “had previously agreed to be released from the case and be bound by the verdict” and “could have intervened earlier”.

The clinic added that while the case is tangentially related to abortion, it is not an abortion dispute.

“While the merits of this case concerns the constitutionality of an abortion law, the only concern of this petition is whether a request for intervention was filed on time,” he wrote.

The Supreme Court will consider the case in its fall term, and a decision is expected to be taken in the summer of 2022.

The case is Daniel Cameron v EMW Women’s Surgical Center, No. 20-601.

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