Kentucky Asks Supreme Court to Resurrect Abortion Curbs by Reviving Lawsuit

Kentucky Asks Supreme Court to Resurrect Abortion Curbs by Reviving Lawsuit
Kentucky Attorney General Daniel Cameron speaks during a press conference in Frankfort, Ky., on Sept. 23, 2020. (Jon Cherry/Getty Images)
Matthew Vadum

Kentucky Attorney General Daniel Cameron is asking the U.S. Supreme Court to revive a state statute that banned a “gruesome” abortion procedure known as dilation and evacuation, which is typically used after the 11th week of pregnancy.

The petition seeking judicial review in the case known as Cameron v. EMW Women's Surgical Center was filed with the Supreme Court on Oct. 30.

In a press release, Cameron, a Republican, said he wants the highest court in the land to consider the American Civil Liberties Union’s challenge to Kentucky’s live dismemberment abortion law (House Bill 454). The statute, passed by the General Assembly in 2018, prevents abortionists from performing “gruesome Dilation and Evacuation procedures (D&E) on a living unborn child,” the release states.

Then-Gov. Matt Bevin, a Republican, signed the bill into law in 2018, but it didn't come into force because the ACLU and a Louisville surgical center obtained a court order to block it.

Earlier this year, Cameron’s office argued in favor of reinstating the legislation on behalf of the Cabinet for Health and Family Services (CHFS) before the 6th Circuit Court of Appeals, but the appeals court upheld the permanent injunction against the law, and CHFS Secretary Eric Friedlander opted not to appeal. Friedlander is an appointee of the current governor of Kentucky, Democrat Andy Beshear.

In 2019, U.S. District Judge Joseph H. McKinley Jr., who was appointed by former President Bill Clinton, held that the law would create a substantial obstacle for women seeking abortions in Kentucky, and therefore ran afoul of the U.S. Constitution.

“If the Act goes into effect, standard D&E abortions will no longer be performed in the Commonwealth due to ethical and legal concerns regarding compliance with the law,” McKinley wrote.

Cameron appealed the ruling, and an appeals court found that the statute “imposes substantial burdens on the right to choose.”

According to Cameron, the D&E procedure “involves tearing a child apart in the womb while he or she is still alive,” but HB 454 requires the abortionist to provide a kind of coup de grace, causing “the unborn child’s death before dismembering them.”

“The passage of House Bill 454 by the General Assembly represents Kentucky’s profound respect for the dignity of human life, and I will pursue every means available to make sure this important law is upheld,” Cameron said. “We’ve fought to defend this law since our first day in office, and now I’m asking our nation’s highest court to consider it.”

“The Kentucky General Assembly passed this measure at the will of the people with the intent to bring an end to a brutal and heinous practice,” said Speaker of the House David Osborne, a Republican.

“That was our intent in 2018 and remains our mission today. The very fact that we had to pass legislation to protect an unborn child from being dismembered while alive speaks volumes about how far some will go to denigrate the value of human life.”

Cameron argues as state attorney general that he's entitled to pick up the defense of the law after Friedlander abandoned it. But a divided 6th Circuit refused to let Cameron defend the law in court, finding that he should have asked to intervene in the case previously.

The case started as an ACLU challenge to a Kentucky statute regulating abortion, “but it is now a dispute about a State’s authority to ensure that its laws are fully defended through this Court,” Cameron argues in his new petition.

“In our dual sovereign system of government, the States have a substantial interest in enforcing their laws. In recognition of this fact, the States get to decide for themselves who defends their laws in court.”

Under Kentucky law, the state attorney general “has not only the power, but also the duty, to defend Kentucky’s laws against legal challenge. And when another state official declines to appeal an adverse ruling, Kentucky law empowers the Attorney General to step in and continue defending state law on appeal.”

Heather Gatnarek, a staff attorney for the ACLU of Kentucky, said that Cameron’s latest legal move is part of a “shameless campaign to eliminate access to abortion care in the Commonwealth,” according to WFPL.

“We will work to make sure this harmful and medically unjustified law remains blocked from enforcement. Abortion remains legal in Kentucky, and you can still seek abortion care in the Commonwealth. The ACLU of Kentucky will do everything in our power to make sure it stays that way.”