Justices allow Kentucky’s attorney general to take over legal defense of state’s abortion law

Betty Q. Hixson
OPINION ANALYSIS

The Supreme Court ruled on Thursday that Kentucky’s attorney general should have been allowed to intervene to defend a state law restricting abortion after another state official declined to do so – even when the U.S. Court of Appeals for the 6th Circuit had already struck down the law.

The 8-1 decision in Cameron v. EMW Women’s Surgical Center addressed only the procedural question, without weighing in on the constitutionality of the Kentucky law, but the ruling revives litigation over the law, which the lower courts had blocked the state from enforcing. More broadly, Justice Sonia Sotomayor warned in her dissent, the decision will also make it easier for government officials to undo litigation decisions previously made by officials of different parties.

The dispute arose when the state’s health secretary, Democrat Eric Friedlander, declined to seek review of a ruling by the 6th Circuit barring the state from enforcing H.B. 454, which makes it a crime for doctors in Kentucky to use the “dilation and evacuation” method, the procedure most often used to end a pregnancy during the second trimester. The state’s attorney general, Republican Daniel Cameron, asked the court of appeals to allow him to join the case in order to seek further review in hopes of reinstating the law, but the 6th Circuit turned down that request.

Kentucky Attorney General Daniel Cameron.

On Thursday, the Supreme Court reversed – a ruling that was not entirely surprising both after the oral argument in October and after Justice Stephen Breyer appeared to inadvertently give away the outcome of the case in last week’s oral argument involving efforts by Republican-led states to intervene to defend a controversial Trump-era immigration rule after the Biden administration declined to do so.

In an opinion by Justice Samuel Alito, the court emphasized the importance of allowing states to defend their own laws in federal court. And in this case, Alito continued, both the Kentucky health secretary and the state’s attorney general share the power under state law to defend the constitutionality of H.B. 454. In denying Cameron’s motion to intervene, Alito concluded, the court of appeals did not adequately consider the strength of Cameron’s interest in joining the case to defend H.B. 454.

The court of appeals was also wrong, Alito added, when it ruled that Cameron had asked to join the case too late because the case had already been underway for years and the three-judge panel had already issued its decision. What is important, Alito emphasized, is that Cameron asked to intervene in the case just two days after Friedlander announced that he would no longer defend H.B. 454.

Justice Elena Kagan filed an opinion (joined by Justice Stephen Breyer) agreeing with the result in the case, but not all of the court’s reasoning. Because, in her view, Cameron’s “motion to intervene was not an end-run around” the requirement that he file a timely appeal from the district court’s decision holding that H.B. 454 violates the Constitution, “this is a textbook case for intervention.”

Justice Sonia Sotomayor dissented from the decision. In her view, the justices could only reach their conclusion that the 6th Circuit’s denial of Cameron’s motion to intervene was clearly wrong “by giving short shrift to a critical and unusual aspect of this case”: In his motion, Cameron changed positions from those that the prior Kentucky attorney general (a Democrat) had taken earlier in the litigation. For example, in the district court, the prior attorney general had indicated that he had no interest in the case. In light of that change of position, Sotomayor suggested, the 6th Circuit was not clearly wrong to deny Cameron’s motion to intervene.  

More broadly, Sotomayor warned that Thursday’s decision could have lasting effects when there is a change in administrations during the course of litigation. The court’s ruling, she cautioned, will “open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties, undermining finality and upsetting the settled expectations of courts, litigants, and the public alike.”

This article was originally published at Howe on the Court

Justices allow Kentucky’s attorney general to take over legal defense of state’s abortion law

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