Supreme Court Takes Up Kentucky Abortion Case, With 6–3 Conservative Majority

Supreme Court Takes Up Kentucky Abortion Case, With 6–3 Conservative Majority
The Supreme Court is seen in Washington on Nov. 5, 2020. (J. Scott Applewhite/AP Photo)
Matthew Vadum

The Supreme Court decided March 29 to take up an abortion case from Kentucky, its first since Justice Amy Coney Barrett’s addition to the court gave its conservative wing a 6–3 majority.

The case is Cameron v. EMW Women’s Surgical Center, court file 20-601. EMW Women’s Surgical Center, in Louisville, is Kentucky’s only licensed abortion clinic.

The case revolves around Kentucky’s 2018 ban on dilation and evacuation (D&E) abortions on unborn, living children.

“I promised Kentuckians that I would defend our laws all the way to the United States Supreme Court, and that’s what we’ve done,” Kentucky Attorney General Daniel Cameron, a Republican, said in a statement.

“Since day one in office, we’ve fought to defend House Bill 454, even when the Beshear Administration refused to defend it. This law reflects the conscience of Kentucky by banning the gruesome practice of live dismemberment abortions, and it’s important that Kentuckians have a voice before our nation’s highest court. I was elected to provide that voice, and we look forward to making our case to the Supreme Court.”

Then-Gov. Matt Bevin, a Republican, signed the law, the Human Rights of Unborn Children Act, which stopped D&E abortions after 11 weeks of pregnancy and was subsequently enjoined by federal courts. After the succeeding administration of Gov. Andy Beshear, a Democrat, refused to defend the statute in court, Cameron indicated he wanted to do so.

The U.S. Court of Appeals for the 6th Circuit turned down Cameron’s request, at which point, he filed his petition asking the Supreme Court to allow him to intervene in the case.

The Supreme Court’s unsigned March 29 order states that its review will be “limited to Question 1 presented by the petition.”

That question states the issue to be considered is: “Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.”

Cameron asked the court to consider the constitutionality of the law after a 5–4 court, including the late Justice Ruth Bader Ginsburg, struck down Louisiana’s Act 620 in June Medical Services LLC v. Russo on June 29, 2020. That statute required abortionists to have hospital admitting privileges close to where the procedure takes place.

Chief Justice John Roberts gave pro-life activists a glimmer of hope when he authored a concurring opinion in the ruling indicating that courts could allow abortion restrictions that had no medical justification if they weren’t overly burdensome to patients.

But, in the case at hand, the Supreme Court decided only to consider the procedural question of whether Cameron could intervene in the case on behalf of Kentucky.

Oral arguments in the case are expected later this year.

Andrew Beck, counsel of record for the abortion clinic, was disappointed by the ruling.

“This case is only about whether the Attorney General, after having sat on the sidelines of this lawsuit, can jump in at the last minute in an effort to revive an unconstitutional law,” Beck, senior staff attorney at the ACLU Reproductive Freedom Project, said in a statement.

Cameron “has shown that he will stop at nothing to prevent people from making their own decisions about a pregnancy. Major medical associations have condemned harmful restrictions like the one at issue here, and every court to consider a law like this has blocked it. We will continue to work to make sure this ban never takes effect.”

Pro-life group Susan B. Anthony List (SBA List) celebrated the court decision.

“It is encouraging news that the Supreme Court will hear this case,” SBA List President Marjorie Dannenfelser said in a statement.

The group praised Cameron “for doing everything in his power to defend Kentucky’s pro-life laws, including its ban on barbaric live-dismemberment abortions, which was enacted with overwhelming bipartisan support. State legislators acting on the will of the people have both the duty and the right to protect their most vulnerable citizens—born and unborn. We look forward to seeing this right upheld.”