Supreme Court says Kentucky AG can defend state’s abortion law

The Supreme Court on Thursday ruled 8-1 that Kentucky’s Republican attorney general, Daniel Cameron, may defend an abortion restriction that lower courts struck down as unconstitutional.

The case was procedural in nature and did not directly address the legality of Kentucky’s now-defunct, GOP-backed abortion law, which would effectively ban after 15 weeks the most common abortion method used in the second trimester of pregnancy.

In their Thursday ruling, the majority held that Kentucky Attorney General Daniel Cameron (R) should be allowed to step in and defend the restrictive abortion law after the state’s Democratic governor declined to do so. Justice Sonia Sotomayor wrote a solo dissent.

The case arose after a messy collision between electoral politics and a government’s legal position in a contentious court fight raised the question of who had the legal right to represent Kentucky’s interests in court.

The dispute began when EMW Women’s Surgical Center — Kentucky’s only abortion clinic — and two of its doctors sued on the grounds that the law, House Bill 454, placed an unconstitutional burden on abortion access.

A federal judge in Louisville struck down the law in 2019, prompting an appeal from the state’s then-Republican-led administration. That ruling was affirmed the next year by the U.S. Court of Appeals for the 6th Circuit. 

But while the appeal was pending, Kentucky voters in 2019 elected Democrat Andy Beshear as governor, whose administration later dropped the case. That same election saw Kentucky voters elect Cameron, a Republican, as attorney general.  

The Supreme Court’s Thursday decision reversed the 6th Circuit’s refusal to let Cameron step in to defend the abortion restriction, H.B. 454, on appeal. 

“The Sixth Circuit panel failed to account for the strength of the Kentucky attorney general’s interest in taking up the defense of HB 454,” Justice Samuel Alito wrote for the majority. 

The ruling returns the case to the 6th Circuit, where Cameron is expected to intervene. 

In a separate case this term, the Supreme Court is weighing a Mississippi law that bans abortion after 15 weeks of pregnancy and poses a direct challenge to the court’s landmark 1973 decision in Roe v. Wade, which recognized a constitutional right to abortion up to around 24 weeks.

Updated at 12:27 p.m.