Supreme Court allows Kentucky attorney general to defend state ban on abortion procedure

WASHINGTON – The Supreme Court on Thursday ruled that Kentucky’s Republican attorney general may step in to defend a state ban on a common abortion procedure, allowing the case to continue in lower federal courts.

The 8-1 opinion was written by Associate Justice Samuel Alito. Associate Justice Sonia Sotomayor wrote a dissent. 

Kentucky Attorney General Daniel Cameron sought to defend a 2018 law banning dilation and evacuation abortions after Democratic Gov. Andy Beshear said his administration no longer would. The procedure is frequently performed in the second trimester of pregnancy.

The decision didn’t deal with the procedure itself, nor abortion in general. The high court is considering a separate case that deals with a Mississippi law that bans most abortions after 15 weeks of pregnancy.

By contrast, the Kentucky case was centered on a more procedural question of whether Cameron could intervene to appeal a ruling from the U.S. Court of Appeals for the 6th Circuit that struck down the state law as unconstitutional. 

"Respondents may have hoped that the new governor would appoint a secretary who would give up the defense of (the law), but they had no legally cognizable expectation that the secretary he chose or the newly elected attorney general would do so before all available forms of review had been exhausted," Alito wrote. 

More:Supreme Court leans toward allowing Ky. attorney general to defend abortion law

Kentucky is one of a dozen states that have attempted to ban the "D&E" procedure, according to the Guttmacher Institute, a research group that supports abortion rights. In Kentucky's case, the law was signed by Republican Gov. Matt Bevin in 2018.

After Beshear took over as governor in 2019, his administration declined to appeal the 6th Circuit's ruling striking down the law. 

Cameron, an independently elected attorney general, argued that he had an obligation to defend the state's law. EMW Women’s Surgical Center, a Louisville abortion clinic, countered that under procedural rules in federal court Cameron should have sought to intervene much earlier in the case. The clinic also noted Beshear removed the attorney general as a party in the case when he served in that role before Cameron.

The Supreme Court turned away a similar issue in 2019, declining to let Alabama defend a ban on the procedure after the U.S. Circuit Court of Appeals for the 11th Circuit struck it down. Opponents of the method, which involves removing a fetus with instruments, call it fetal "dismemberment." Abortion rights groups say it is the safest and most common second-trimester abortion procedure.

"This is not the first time a governmental office has changed hands in the middle of a protracted lawsuit, and it certainly will not be the last," Sotomayor wrote. "Elections have consequences not just for the public but also for state officers who may find themselves bound by strategic litigation choices made by their predecessors in office."