U.S. Supreme Court leans toward letting Kentucky official defend abortion law

The arguments heard by the nine justices did not involve the legality of the 2018 law, focusing instead on the narrow legal issue of whether Kentucky Attorney General Daniel Cameron can take over the defense of it in a bid to revive the measure.

The dispute highlighted the sometimes-messy conflicts that arise when a governor and a state's top legal officer differ in political views or party, leading to disagreements on whether to defend certain state laws in court. Conservative and liberal justices asked questions that indicated sympathy toward ensuring that Cameron, as attorney general, retains the power to act even after a governor of a different political party takes office.

Republican-backed abortion restrictions enacted by numerous U.S. states in recent years have continued to draw the attention of the nation's highest judicial body. The justices last month allowed a near-total ban on abortion in Texas to take effect. Abortion rights advocates have said Kentucky's law would effectively ban an abortion method called dilation and evacuation - the most common form during the second trimester of a pregnancy - effectively banning abortions after 15 weeks of pregnancy.

The justices must decide whether Cameron can now try to defend the law after lower courts already ruled that it violated Supreme Court precedents holding that women have a right under the U.S. Constitution to obtain an abortion. Governor Andy Beshear's administration dropped the case. EMW Women's Surgical Center, an abortion clinic in Louisville, challenged Kentucky's law, which was signed by then-Governor Matt Bevin, a Republican. Bevin subsequently lost his re-election bid to Beshear in 2019.

Conservative Chief Justice John Roberts expressed doubt that when the political "deck is shuffled" a state attorney general should be precluded from continuing to participate in ongoing litigation. Roberts said that Kentucky "maybe ought to be there in some form, and the attorney general is the one that wants to intervene."

Liberal Justice Stephen Breyer noted that Republicans and Democrats often hold different views on abortion, and that Cameron stepped in once Kentucky's new Democratic administration dropped the case. "At that point for the first time we have an attorney general who thinks it's a pretty good statute - he wants to defend it," Breyer said "... 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?" Breyer asked American Civil Liberties Union lawyer Alexa Kolbi-Molinas, representing the abortion clinic.

The Beshear administration's health department continued to defend the law in court after he took office. But after the Cincinnati-based 6th U.S. Circuit Court of Appeals struck it down in 2020, his administration decided not to press the matter further, prompting Cameron to seek to take over the defense. The 6th Circuit denied that request, saying it was too late for Cameron's office to step in. Kolbi-Molinas urged the justices to rebuff Cameron because early in the litigation the state attorney general's office agreed to be bound by the lower court's final judgment and then did not pursue an appeal.

"Intervention is not a revolving door that allows a party to agree to be bound, procure their dismissal, fail to appeal, and then gain re-entry to the suit after the court of appeals has ruled," Kolbi-Molinas said. Abortion opponents are hopeful that the Supreme Court, with its 6-3 conservative majority, will pare back abortion rights. It will hear 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 legalized the procedure nationwide.