Supreme Court allows new defense of blocked Kentucky abortion law

Justices concluded by an 8-1 vote that Attorney General Daniel Cameron can step in

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The Supreme Court ruled Thursday that Kentucky's Republican attorney general may continue defending a restriction on abortion rights that had been struck down by lower courts.

The underlying issue in the case is a blocked state law that abortion rights supporters say would have effectively banned a standard abortion method in the second trimester of pregnancy.

But the justices decided the more technical issue of whether Attorney General Daniel Cameron can intervene in the case after rulings from a trial court and appellate panel, as well as Democratic Gov. Andy Beshear's decision to drop the case.

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Kentucky Attorney General Daniel Cameron speaks to members of the press after the oral arguments of the Cameron v. EMW Women’s Surgical Center case were heard at the U.S. Supreme Court, Oct. 12, 2021, in Washington, DC. 

Kentucky Attorney General Daniel Cameron speaks to members of the press after the oral arguments of the Cameron v. EMW Women’s Surgical Center case were heard at the U.S. Supreme Court, Oct. 12, 2021, in Washington, DC.  (Alex Wong/Getty Images)

The court concluded by an 8-1 vote that Cameron can step in. Justice Samuel Alito wrote for the majority and only Justice Sonia Sotomayor dissented in opinions that turned on procedural questions, not the right to abortion.

The case is separate from the court's consideration of Mississippi's call to overrule Roe v. Wade and Planned Parenthood v. Casey, the two cases guaranteeing woman's right to an abortion nationwide, and allow states to set their own rules. Kentucky is among a dozen states with a law that would effectively ban abortions in the event Roe and Casey are jettisoned.

A police officer maintains a watch during a demonstration by victims of gun violence in front of the Supreme Court as arguments begin in a major case on gun rights on Nov. 3, 2021 in Washington, D.C.

A police officer maintains a watch during a demonstration by victims of gun violence in front of the Supreme Court as arguments begin in a major case on gun rights on Nov. 3, 2021 in Washington, D.C. (Joshua Roberts)

The Kentucky law was adopted in 2018, when Republican Matt Bevin was governor. Following a lawsuit by abortion providers, a trial court permanently blocked the law, finding that the law would have made it impossible to perform the abortion procedure known as dilation and evacuation. A panel of the 6th U.S. Circuit Court of Appeals upheld that ruling in June 2020.

Five days later, the Supreme Court ruled 5-4 to strike down an unrelated Louisiana law regulating abortion clinics. But Cameron, who became attorney general in 2019, said the reasoning used by the high court called into question the ruling against the Kentucky law.

The appeals court, however, rejected his efforts to intervene, prompting his appeal to the Supreme Court.
Cameron said Thursday that he plans to return to the appeals court to argue that the law should be allowed to take effect. "At every turn, we've maintained that Kentucky's law banning live-dismemberment abortions is worth defending and should receive a full defense from the challenge brought by the ACLU and an abortion clinic," Cameron said in a statement. The American Civil Liberties Union is representing the abortion clinic.

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Cameron said he plans to return to the appeals court to argue that the law should be allowed to take effect. If he loses there, Cameron could appeal to the Supreme Court.

Justice Stephen Breyer hinted at the outcome during high court arguments last week over an unrelated case in which Republican attorneys general are asking to be allowed to intervene to defend a Trump-era immigration rule. "Pretty similar to what we just allowed in that case of the attorney general," Breyer said.