WASHINGTON — The Supreme Court ruled Thursday that the Republican attorney general of Kentucky can intervene to defend the state’s ban on a common abortion procedureallowing the case to proceed 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 has sought to defend a 2018 law banning dilation and evacuation abortions after Democratic Gov. Andy Beshear said his administration would no longer do so. The procedure is frequently performed in the second trimester of pregnancy.
The ruling did not address the procedure itself, or 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.
On the other hand, the The Kentucky case centered on a more procedural issue whether Cameron could step in to appeal a decision by the United States 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 waive the defense of (the law), but they did not legally expect the secretary he chose or the newly elected attorney general on done before all available forms of the review had been exhausted,” Alito wrote.
Kentucky is one of twelve states that have attempted to ban the “D&E” procedure, according to the Guttmacher Institute, a research group that supports abortion rights. In the case of Kentucky, the law was signed by Republican Governor Matt Bevin in 2018.
After Beshear took office as governor in 2019, his administration declined to appeal the 6th Circuit’s decision striking down the law.
Cameron, an independently elected attorney general, argued that he had an obligation to uphold state law. EMW Women’s Surgical Center, an abortion clinic in Louisville, countered that under federal court procedural rules, Cameron should have sought to intervene in the case much sooner. The clinic also noted that Beshear removed the attorney general as a party to the case despite serving in that role before Cameron.
The Supreme Court dismissed a similar question in 2019, refusing to let Alabama defend a procedural ban after the United States Circuit Court of Appeals for the 11th Circuit overturned it. 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 government office has changed hands amid a protracted trial, and it certainly won’t be the last,” Sotomayor wrote. “Elections have consequences not only for the public, but also for public officials who may find themselves bound by strategic litigation choices made by their predecessors in power.”