WASHINGTON — The Supreme Court seemed inclined Tuesday to let Kentucky's attorney general try to defend a state law, currently blocked by the lower courts, that would ban a commonly used abortion procedure.
The word "abortion" was mentioned only once during the roughly 70 minutes of courtroom argument, which focused instead on the technical issue of whether the attorney general's office can come back into the case after initially bowing out and two federal courts declared it unconstitutional.
The law at the heart of the case would ban the surgical abortion procedure known as dilation and evacuation that is most commonly used in the second trimester of pregnancy. Immediately after then-Gov. Matt Bevin, a Republican, signed the law in 2018, a Louisville women's surgical center challenged it in court.
A federal judge found the law unconstitutional in 2019, concluding that it restricted a woman's right to an abortion before the fetus is considered viable. And a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Ohio, agreed. At that point, the state health official who defended the law decided not to file any more appeals.
But after Republican Daniel Cameron was elected as the state's attorney general in 2020, he asked the full 6th Circuit to take another look at the law. The appeals court, however, turned him down, saying he came to the process too late.
"We want a fail-safe," Kentucky's principal deputy solicitor general, Matthew Kuhn, told the justices. If one department in the state doesn't want to appeal anymore, the attorney general can step in, he said, adding, "We'd have a handoff from one state official to another in defending Kentucky's law."
But Alexa Kolbi-Molinas of the American Civil Liberties Union, defending the state's only licensed outpatient abortion clinic, said the attorney general waited too long after the appeals panel ruled and was bound by an earlier agreement to abide by court rulings.
"Intervention is not a revolving door," Kolbi-Molinas said. "He can't gain reentry after the court of appeals ruled."
But both liberal and conservative justices expressed skepticism about that argument, suggesting that the change in the state's leadership after an election could make a difference.
"There have been a lot of party changes," Justice Stephen Breyer said. "First the Republicans are in, then the Democrats are in, and they have different views on an abortion statute. We have an attorney general who thinks it's a pretty good statute and he wants to defend it. Why can't he just come in and defend it?"
Chief Justice John Roberts raised the same concern. "The situation changes when the deck is shuffled again after an election."
If Cameron succeeds before the Supreme Court, he can ask the full appeals court to take up the constitutionality of the state law, but there's no guarantee that it will. Even if it does, the court is likely to declare the law unconstitutional because it would violate the Supreme Court's existing abortion rulings.
The justices won't take up Mississippi's direct challenge to Roe v. Wade until Dec. 1. Decisions in both cases will likely be issued by late June.