SCOTUS allows Kentucky AG to defend 11-week abortion ban

The United States Supreme Court on Thursday appointed Kentucky as attorney general DanielCameron (R) a chance to defend the state’s restrictive abortion law in court after Gov. Andy Bescher (D) refused to defend the ban.

the 8-1 decision in the case stylized as Cameron v EMW Women’s Surgical Center was written by the judiciary Samuel Alito. Two separate consents were drawn up by the judiciary Clarence Thomaswho would have gone further than the majority, and justice Elena Kaganwho joined Stephen Breyer. Kagan wrote separately to say that she agreed with the result, but got there in a slightly different way. Justice Sonja Sotomayor was, as so often, the only disagreement.

In deciding in favor of Cameron, the court did not address the merits Kentucky House Bill 454. Passed by the state legislature and then signed into law by a former Republican governor in 2018, the controversial anti-abortion law bans the use of a common abortion surgery known as dilation and evacuation after the 11 of a medical emergency.”

Instead, the nine justices were asked to determine whether the current status of the long-running lawsuit brought by a health clinic against HB 454 prevents the state’s relatively new attorney general from trying to revive the ban as a party defending the law may after the previous Attorney General declined to do so. In particular, the abortion ban itself is currently being imposed as the U.S. Court of Appeals for the Sixth Circuit deals with the case.

Earlier, Cameron had asked the entire Sixth Circuit to retry the case after a three-judge panel struck down the law. The Court of Appeal denied it, arguing that the Attorney General’s request to intervene on behalf of the state came too late in the process.

But it’s not that simple.

Earlier, the Kentucky Secretary of Health and Family Affairs defended the law in federal court. That didn’t change when Gov. Beshear, pro-choice, took over from the previous GOP governor — at least not initially. The new health secretary, who is close to the Democratic Party, initially defended the abortion ban with Cameron as legal counsel. However, when the Sixth Circuit ruled in favor of the health clinic, the Secretary of Health dropped his defense of the bill.

Thereafter, Cameron ceased to represent the state’s health secretary and intervened as his own party. But that’s not the end of the story here either – due to another wrinkle in procedural terms.

Beshear himself was previously a prosecutor and was initially sued. However, his office, with the approval of the health clinic, withdrew from the litigation with a signed clause agreeing to be bound by the final judgment at the district court level.

Since the health clinic won in circuit court, they and their allies argued, Cameron’s office simply could not intervene.

Alito’s majority opinion throws away all these obstacles in turn.

“By agreeing to be bound, the Attorney General expressly reserves[d] all rights, titles and defenses. . . in all appeals arising out of this lawsuit,’ and that language easily covers the right to request a rehearing en banc and the right to file a warrant for a writ,” the judge writes. “Furthermore, the termination clause made it clear that the verdict to which the Attorney General agreed to be bound was the verdict that came out after all appeals were completed.”

The majority accuses the Sixth Circuit of essentially erroneously limiting its own jurisdiction.

“The determination of a request for admissible intervention rests with the discretion of the court before which intervention is sought,” Alito continues. “But a court fails to exercise its discretion reasonably when it is ‘based[s] his decision on an erroneous view of the law,” and that’s what happened here. The Sixth Circuit panel failed to consider the Kentucky Attorney General’s strong interest in picking up the defense of HB 454 when the Secretary of Health and Family Services chose to acquiesce.”

The majority also blames the Court of Appeals for how it understood and applied the issue of timeliness in a motion for intervention.

Cameron’s intervention was untimely, the lower court said, because it was only after years of litigation at the circuit court level and finally when the Sixth Circuit issued its own opinion overturning the abortion ban that he applied to be included.

Alito focuses extensively on:

Timeliness is an important consideration in deciding whether an intervention should be allowed, but “[t]Immediacy is to be determined from all circumstances” and “the point up to which [a] suit is advanced . . . not only dispositive.”

The most important fact in terms of timeliness here is that the Attorney General wanted to intervene “once it became clear” that the interests of the Commonwealth would “no longer be protected” by the parties in the case.

Specifically, Alito explained that Cameron stepped in to intervene in federal court “two days after learning” that the Kentucky Secretary of Health “would no longer defend” the bluegrass state’s abortion ban.

“The motion was also filed within a week of the Sixth Circuit Court’s decision and within the 14-day period for requesting an en banc hearing,” the majority notes. “Although the litigation had been going on for years at this point, this factor is not decisive. The need for the Attorney General’s intervention only arose when the Secretary of State ceased to defend State law, and the timeliness of his request should be assessed in relation to that point in time.”

In contradiction, justice Sonja Sotomayor formulates its resistance to the majority opinion first with the case law, which states that “there must be a point in time when the legal dispute should be over”.

But the core of their dissent isn’t about timing at all.

Rather, Sotomayor declines to frame the case as a question “whether an attorney general may intervene after a federal appeals court has already rendered its ruling to defend a state law where no other state actor will do so.” Instead, she argues, Cameron’s version of the Kentucky Attorney General should be bound by the determination of Beshear’s version, which bound the office to the district court’s ruling in the case.

“[T]This is not the first time a government office has changed hands in the middle of a lengthy court case, and it certainly won’t be the last,” writes Sotomayor. “Elections not only have consequences for the public, but also for state officials, who may feel bound by strategic decisions made by their predecessors in litigation. Shifts in the political winds do not support any particular departure from estoppel’s longstanding tenets. Rules that protect trust and finality are there for a reason: courts, litigants and the public must be able to trust what is said in court.”

[Image of Alito via Erin Schaff-Pool/Getty Images; Sotomayor via Allison Shelley/Getty Images]

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James Brien

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