The United States Supreme Court has allowed Kentucky’s Republican attorney general to take over the defence of a restrictive abortion law after the state’s Democratic governor dropped the case when lower courts struck down the statute.
The justices on Thursday ruled 8-1 in favour of Kentucky Attorney General Daniel Cameron, the top legal officer in the state, in his appeal of a lower court’s rejection of his request to intervene in the litigation. A federal appeals court had found that Cameron’s request, in a bid to revive the law, came too late.
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The justices found that even though the Cincinnati-based 6th US Circuit Court of Appeals had already issued its decision in the case, it should have used its discretion to allow the state’s attorney general to step in to pursue a rehearing or an appeal to the Supreme Court.
The Supreme Court’s ruling was authored by conservative Justice Samuel Alito and joined by the other five conservative justices. Liberal Justices Elena Kagan and Stephen Breyer concurred in the judgement, while Justice Sonia Sotomayor dissented.
Kentucky’s Republican-backed 2018 law placed strict limits on the use of an abortion method called dilation and evacuation – the most common form of the procedure after 15 weeks of pregnancy during the second trimester. Abortion rights advocates have said the law would effectively ban the procedure, though its proponents denied that it was a ban.
The law was passed by the state legislature and signed by then-Governor Matt Bevin. Bevin, a Republican, subsequently lost his 2019 re-election bid to Democrat Andy Beshear.
EMW Women’s Surgical Center, an abortion clinic in Louisville, challenged Kentucky’s law. It argued that Cameron should not be able to take the case further because the state attorney general’s office previously agreed to be bound by the lower court’s final judgement and then did not pursue an appeal.
The case heard by the Supreme Court did not involve the legality of the law, focusing instead on the narrow legal issue of Cameron’s right to act when another state official declines.
The case highlights the sometimes-messy conflicts that arise when a governor and a state’s top legal officer differ in political views or party, sometimes leading to disagreements on whether to defend certain state laws in court.
Beshear’s administration dropped the case after the 6th Circuit ruled that the law violated Supreme Court precedents holding that women have a right under the US Constitution to obtain an abortion. Kentucky’s health department had continued to defend the law in court after Beshear took office but opted not to pursue the matter further after the 6th Circuit’s decision. Cameron then unsuccessfully sought to take over the defence.
Abortion opponents are hopeful that the Supreme Court, with its 6-3 conservative majority, will roll back abortion rights.
The justices heard arguments in December over a Mississippi law that bans abortion after 15 weeks of pregnancy, a case in which that state is asking them to overturn the 1973 Roe v Wade ruling that legalised the procedure nationwide. A ruling in that case is due by the end of June.