Supreme Court considers Kentucky AG’s power to defend abortion restriction

The Supreme Court on Tuesday heard arguments over an effort by Kentucky’s Republican attorney general to defend an abortion restriction that lower courts struck down as unconstitutional. 

The dispute stemmed from a GOP-backed abortion law that would effectively ban after 15 weeks the most common abortion method used in the second trimester of pregnancy. But the case heard Tuesday was technical in nature and did not concern the legality of the underlying abortion restriction.

The case arose 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 last year by a divided three-judge panel of the Cincinnati-based 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 and he dropped the case. Beshear, in his prior role as the state’s attorney general, had also refused to defend the law in court. 

That same election saw Kentucky voters elect a Republican to succeed Beshear as attorney general.  

In a case that underscored the scrambling effect that electoral politics can have on a government’s legal posture, Tuesday’s dispute dealt with whether Kentucky’s Republican attorney general, Daniel Cameron, can intervene to defend the GOP-backed law. 

Several justices appeared receptive to the Kentucky attorney general’s argument that his legal position should not be foreclosed as a result of a change in administrations. Along these lines, some of the court’s more liberal and conservative justices alike posed sharp questions to an attorney for the abortion clinic. 

“That would be an extremely harsh jurisdictional rule, or at least a counterintuitive rule, if it ended up in a place where nobody was there to defend Kentucky’s law, even though there are significant parts of Kentucky’s government that still want its law defended,” said Justice Elena Kagan, echoing a similar question from fellow liberal Justice Stephen Breyer.

Chief Justice John Roberts questioned whether ruling against the Republican attorney general would effectively leave voters “stuck with what the people have rejected in the election.”

“The situation changes a bit when the state representations are shuffled, the deck is shuffled again after an election,” Roberts said. “And the question is whether you want to preclude the state from participating in the litigation that is still ongoing … to deny the state any representation.”

Alexa Kolbi-Molinas, who argued the case for the abortion clinic, said Kentucky’s current attorney general should be bound by his predecessor’s court-sanctioned agreement that the office would not enforce the restrictive abortion law. 

“The attorney general, it is well settled in this Court, stands in the shoes of his predecessors. It is well settled that … a successor in office is bound by the stipulations made by and judgments against their predecessors,” she told the justices. “It doesn’t matter that there’s been a political party change.”

Tuesday’s dispute comes just weeks before the justices hear a blockbuster clash over Mississippi’s 15-week abortion ban. That case tees up a direct challenge to the Supreme Court’s landmark 1973 decision in Roe v. Wade that first recognized a constitutional right to abortion before fetal viability, around 24 weeks.

A decision in the case argued Tuesday, Cameron v. EMW Women’s Surgical Center, is expected by late June.

Updated at 2:54 p.m.