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High court weighs if Kentucky AG can defend abortion ban

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WASHINGTON (BP) – The U.S. Supreme Court considered in oral arguments Tuesday (Oct. 12) whether Kentucky’s attorney general should be permitted to defend a ban on a particularly gruesome method of abortion after another public official declined to do so.

The justices are expected to rule before their term ends next summer on Daniel Cameron’s effort 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. The high court is not being asked to rule on the constitutionality of the ban but on whether Cameron, as the Kentucky’s attorney general, qualifies legally to defend the law, which was invalidated by lower courts.

While the case is not directly about abortion, that contentious issue provides the background for the case. Southern Baptist and other pro-life advocates expressed gratitude for the pro-life efforts by Kentucky and other states and hope that the Supreme Court will find Cameron’s attempt to intervene permissible.

“In many ways, this case in Kentucky serves as a preview of what is likely to come in a post-Roe world,” said Brent Leatherwood, acting president of the Southern Baptist Ethics & Religious Liberty Commission. “Many people believe that overruling the disastrous Roe v. Wade decision represents the ultimate victory for the pro-life movement. While it certainly will be a significant achievement, it will also be a clarifying moment that much work remains at the state level.”

If Roe v. Wade, the 1973 opinion that legalized abortion nationwide, were to be reversed, regulation of the procedure would once again return to the states.

“In this instance, we’re thankful that Attorney General Cameron is seeking to defend Kentucky’s bipartisan ban on live dismemberment abortions, a truly heinous act,” Leatherwood said in written comments. “The predatory abortion industry must continue to be opposed at the state level. We believe this will ultimately help move our society to a place where abortion is both unnecessary and unthinkable.”

Todd Gray, executive director-treasurer of the Kentucky Baptist Convention, said in written remarks, “Kentucky Baptists are praying for the day when legalized abortion will be abolished in Kentucky. I am also prayerful that Attorney General Cameron will be permitted to defend all abortion laws in Kentucky.”

In a written statement, Marjorie Dannenfelser, president of the pro-life group Susan B. Anthony List, said Cameron, as chief enforcement officer of Kentucky’s laws, “should have the power to defend the will of the people to protect the unborn.”

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

A federal court struck down the Human Rights of Unborn Children Act, and a panel of the Sixth Circuit Court of Appeals in Cincinnati upheld the lower-court ruling. After those decisions, Eric Friedlander, appointed by new Democratic Gov. Andy Beshear in late 2019 as the secretary of the Cabinet for Health and Family Services, declined 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. The Sixth Circuit panel, however, denied his request. In response, Cameron asked the Supreme Court to reverse the Sixth Circuit panel’s decision and permit him to defend the law.

Matthew Kuhn, Kentucky’s principal deputy solicitor general, told the justices Tuesday on behalf of Cameron that the November 2019 election – which saw Beshear elected governor after serving as attorney general and Cameron elected to replace him – showed “the wisdom of the way Kentucky had structured its system of government, its way of defending its sovereignty when its laws are challenged, because the reversal of one party was not good enough for Kentucky’s law to go away.”

Beshear’s administration said “no further” to continuing to defend the ban on dismemberment abortions, but Kentucky created a “fail-safe.”

The Sixth Circuit Court’s refusal to allow Cameron to intervene “is to say to a sovereign state that ‘you just can’t structure your government that way. You cannot defend your sovereign interests the way that you want to do so.’” That contradicts the justices’ view in a previous decision that “we respect how states structure their government,” Kuhn said.

Alexa Kolbi-Molinas, representing a Louisville abortion clinic, told the high court the attorney general – Beshear at the time – “agreed to be bound by final judgment [of the federal court] and chose not to appeal it.” The attorney general “cannot now avoid his jurisdictional failure by seeking to intervene instead,” she said.

Associate Justice Stephen Breyer, who normally votes with the liberal wing of the Supreme Court, asked Kolbi-Molinas why Cameron couldn’t defend the law after the party change in the attorney general’s office since it is “OK under Kentucky law apparently.” 

“And so, if there’s no prejudice to anybody, and I can’t see where there is, why can’t he just come in and defend the law? How does he defend it? One, he asks for rehearing. It’s still timely. And then, two, if they say no, he comes to this court,” Breyer said.

Kolbi-Molinas told Breyer, “The attorney general, it is well settled in this court, stands in the shoes of his predecessors. It is well settled that … a successor in office is bound by the stipulations made by and judgments against their predecessors. It doesn’t matter that there’s been a political party change.”

Kolbi-Molinas is senior staff attorney at the ACLU Reproductive Freedom Project. She said in a news release Tuesday from the ACLU, “Enough is enough. The Supreme Court ought to put an end to the attorney general’s attempts to force people to continue their pregnancies against their will.”

In a statement released Tuesday by Susan B. Anthony List, Cameron said, “[T]he overwhelming passage of our law banning live dismemberment abortions signifies the commitment of Kentuckians to extend dignity and compassion to the unborn. When laws like this are challenged in court, they must be defended.”

The case is Cameron v. EMW Women’s Surgical Center.

The justices have returned to hearing oral arguments in the courtroom this term, which began Oct. 4, after conducting them virtually beginning in May 2020 because of the COVID-19 pandemic.

Live audio of the arguments is available at https://www.supremecourt.gov.