Supreme Court Focuses on Procedure in Kentucky Abortion Case

After the state’s political landscape shifted in 2019, the Democratic governor and the Republican attorney general disagreed on defending the law.,


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WASHINGTON — The Supreme Court heard arguments in an abortion case on Tuesday, but the issue for the justices was a procedural one: Could Kentucky’s attorney general, a Republican, defend a state abortion law when the governor, a Democrat, refused to pursue further appeals after a federal appeals court struck down the law?

As the argument progressed through a thicket of technical issues, a majority of the justices seemed inclined to say yes.

“Kentucky maybe ought to be there in some form, and the attorney general is the one that wants to intervene,” Chief Justice John G. Roberts Jr. said.

More important abortion cases are on the horizon. In December, the court will hear arguments on whether to overrule Roe v. Wade in a case concerning a Mississippi law banning most abortions after 15 weeks. And the justices have been asked to have take another look at a Texas law that prohibits most abortions after six weeks, which the court allowed to go into effect last month by a 5-to-4 vote.

Tuesday’s case, Cameron v. EMW Women’s Surgical Center, No. 20-601, concerned a Kentucky law that challengers said effectively banned the most common method of abortion in the second trimester of pregnancy, dilation and evacuation. The justices barely discussed the law during Tuesday’s argument.

Rather, they focused on the tangled history of the case and the complicated jurisdictional and procedural questions that arose from it.

The case started in 2018, when the state’s only abortion clinic and two doctors sued various state officials to challenge the law. The state’s attorney general at the time, Andy Beshear, a Democrat, said his office was not responsible for enforcing the law and entered into a stipulation dismissing the case against him, agreeing to abide by the final judgment and reserving the right to appeal.

The state’s health secretary, who had been appointed by a Republican governor, defended the law in court. A federal trial court struck the law down, saying it was at odds with Supreme Court precedent. The health secretary appealed, but the attorney general did not.

While the case was moving forward, Kentucky’s political landscape shifted. Mr. Beshear, who had been attorney general, was elected governor. Daniel Cameron, a Republican, was elected attorney general.

Mr. Beshear appointed a new health secretary, Eric Friedlander, who continued to defend the law on appeal. But after a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, affirmed the trial judge’s ruling, Mr. Friedlander declined to seek review from the full appeals court or the Supreme Court.

Mr. Cameron, the new attorney general, sought to intervene in the appeals court, saying he was entitled to defend the law. The appeals court denied his request, ruling that it had come too late.

On Tuesday, the justices probed the significance of the stipulation and the standards for when appeals courts should allow parties to intervene in the late stages of a case.

Justice Clarence Thomas, who has taken to asking the first questions during arguments, said there was “there isn’t much law” on the appropriate standards.

Justice Sonia Sotomayor said the Sixth Circuit was entitled to take account of the fact that the attorney general had failed to file an appeal after losing in the trial court, notwithstanding the later election of a new attorney general.

“Why would we call it an abuse of discretion for a court of appeals, after it’s rendered its judgment, to say we don’t really care what has happened in the political arena?” she asked.

Matthew F. Kuhn, a lawyer for Mr. Cameron, said his client was acting in a different capacity when he sought to intervene. He was now, Mr. Kuhn said, representing the interests of the state.

About 45 minutes into the argument, Justice Stephen G. Breyer described what he said was really going on the case. “First the Republicans are in, then the Democrats are in,” he said, “and they have different views on an abortion statute.”

He described the history of the case, ending with the ruling from the three-judge panel of the appeals court.

“At that point, for the first time, we have an attorney general who thinks it’s a pretty good statute,” Justice Breyer said. “He wants to defend it.”

“Why can’t he just come in and defend the law?” Justice Breyer asked.

Alexa Kolbi-Molinas, a lawyer with the American Civil Liberties Union, which represents the challengers, said Mr. Cameron was bound by the stipulation signed by his predecessor. “It doesn’t matter that there’s been a political party change,” she said.

Justice Elena Kagan said that was both basically right and a little unsettling.

“We have a lot of law saying that even though the attorney general, the person, has changed and even the party has changed, it’s still the same legal entity,” she said

“But there’s a real-world way in which that seems to matter a lot,” she said. “I mean, that creates the problem here, which is that there’s nobody left defending the state’s law.”

Ms. Kolbi-Molinas responded that “jurisdictional rules often result in harsh results.”

Chief Justice Roberts picked up the theme that Justice Breyer and Kagan had pursued.

“As Justice Breyer pointed out,” the chief justice said, “the situation changes a bit when the state representations are shuffled — the deck is shuffled again — after an election.”

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