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High court permits Kentucky AG to defend abortion ban

U.S. Supreme Court (AP file photo)

WASHINGTON (BP) – Kentucky Attorney General Daniel Cameron will be able to defend the state’s ban on a particularly heinous method of abortion, a nearly unanimous U.S. Supreme Court ruled Thursday (March 3).

The high court issued an 8-1 opinion that enables Cameron to intervene in defense of Kentucky’s Human Rights of Unborn Children Act, a 2018 law that prohibits dismemberment or D&E abortions on unborn children who are still alive. Only Associate Justice Sonia Sotomayor dissented.

Cameron had sought permission from the Sixth Circuit Court of Appeals in Cincinnati to defend the law after the secretary of the Cabinet for Health and Family Services declined to continue to do so, but the court denied his request. The attorney general responded by asking the Supreme Court to overturn the Sixth Circuit Court’s decision and permit him to defend the law before the appeals court.

While the high court ruled only on whether Cameron qualifies legally to defend the law and not on the abortion ban’s constitutionality, Baptist leaders at the national and state level still applauded the decision.

“I find myself thankful at any point when an elected official seeks to protect the vulnerable, and that is what Attorney General Cameron is wanting to do here,” said Brent Leatherwood, acting president of the Southern Baptist Ethics & Religious Liberty Commission. “This procedure at issue here is an especially ghastly one and, of course, the predatory abortion industry is challenging any law that might end it.

“The Supreme Court has said Cameron may defend the law and, by extension, the preborn lives it may end up saving. That was the proper decision, and we pray this allows Kentucky to take one more step to become a state that protects life.”

Todd Gray, executive director-treasurer of the Kentucky Baptist Convention, told BP in written remarks, “Kentucky Baptists are thankful for Attorney General Daniel Cameron and his convictional protection of the unborn. We rejoice over this ruling from the Supreme Court, pray for the attorney general as he takes this case back to the court of appeals, and anticipate the day when legalized abortion will be part of our past.”

Describing the Supreme Court’s opinion as “a victory for the rule of law,” Cameron said in a written statement, “The members of the General Assembly, pro-life advocates, and countless Kentuckians have championed this law at every turn, and we are incredibly grateful for their support. While the legal challenge to this law is not over, we will do what is necessary to defend it.”

The American Civil Liberties Union, one of the parties in the lawsuit against the ban, said on Twitter it would “continue the fight to prevent this law from going into effect.”

Abortion providers typically use in the second trimester of a pregnancy what pro-life advocates refer to as the live dismemberment method – in which an unborn child is torn apart piece by piece. The Kentucky ban on the procedure is considered a humane effort to reduce the pain an aborted child would experience.

In writing for the high court’s majority, Associate Justice Samuel Alito cited a previous opinion by the justices in saying each state “clearly has a legitimate interest in the continued enforceability of its own statutes.” Alito wrote, “This means that a State’s opportunity to defend its laws in federal court should not be lightly cut off.”

Such respect for a state’s sovereignty “must also take into account the authority of a State to structure its executive branch in a way that empowers multiple officials to defend its sovereign interests in federal court,” he wrote, again referencing a past decision by the high court. 

Eric Friedlander, the secretary of the Cabinet for Health and Family Services, shared with Cameron, in his role as attorney general, the authority to defend the constitutionality of the Human Rights of Unborn Children Act, Alito wrote. “The Sixth Circuit panel failed to account for the strength of the Kentucky attorney general’s interest in taking up the defense of [the law] when the secretary for Health and Family Services elected to acquiesce.”

A federal court struck down the abortion ban, and a divided, three-judge panel of the Sixth Circuit Court upheld the lower-court ruling. After those decisions, Friedlander, appointed by new Democratic Gov. Andy Beshear in late 2019 as the secretary of the Cabinet for Health and Family Services, decided not to defend the law any further.

Two days after becoming aware Friedlander would not continue to defend the law, Cameron, a Republican elected in 2019, sought to intervene, asking the full appeals court to reconsider the decision. When the Sixth Circuit panel denied his request, Cameron asked for a ruling from the Supreme Court.

The case is Cameron v. EMW Women’s Surgical Center. The Supreme Court’s opinion in the case is available here.