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Supreme Court lets Kentucky attorney general take over defense of state’s abortion law

The ruling gives defenders of the Kentucky law a chance to try to revive it.

The Supreme Court ruled Thursday that Kentucky’s Republican attorney general can pick up the legal fight over a restrictive abortion law that the state’s Democratic governor no longer wishes to defend.

Already this term, the court has allowed a Texas abortion law, the strictest in the nation, to remain in force. And it has yet to rule on a case from Mississippi with much higher stakes, which presents a direct challenge to Roe v. Wade.

Thursday’s case also involved the issue of abortion, but the ruling was about a different question: Who can represent a state in court after there’s been a shift in the political landscape?

The law at issue, House Bill 454, was passed by Kentucky’s legislature in 2018. It would ban the use of a surgical abortion procedure commonly used in the second trimester of pregnancy. Immediately after the law was signed by the former governor, Republican Matt Bevin, a Louisville women’s surgical center challenged it in court.

A federal judge found the law unconstitutional, concluding that it restricted a woman’s constitutional right to an abortion before the fetus is considered viable. A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Ohio, agreed.

A Democrat, Andy Beshear, then took over the governor’s office, and the state health official who initially defended the law declined to take further action. But the state’s newly elected attorney general, Republican Daniel Cameron, asked the full 6th Circuit to take another look at the law. The appeals court turned him down, saying he came to the process too late.

But by a vote of 8-1, the Supreme Court reversed that ruling Thursday, allowing the attorney general to step in to defend the law. 

“The Sixth Circuit panel failed to account for the strength of the Kentucky attorney general’s interest in taking up the defense of HB 454 when the secretary for Health and Family Services elected to acquiesce,” wrote Justice Samuel Alito for the majority.

Dissenting, Justice Sonia Sotomayor said that in reaching its decision, the majority “bends over backward to accommodate the attorney general’s reentry into the case.”

She said the ruling could “open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties, undermining finality and upsetting the settled expectations of courts, litigants, and the public alike.”

Cameron’s victory does not guarantee that the full appeals court will grant his request for review or will allow the law to take effect. But it does give defenders of the Kentucky law another chance to try to revive it.

“This is a ruling that many in the commonwealth have hoped for, and we will proudly continue to carry the mantle for this important pro-life law by going back to the Sixth Circuit and litigating the case,” Cameron said in a statement.

Their prospects of success may depend on what the Supreme Court ultimately says about the abortion right when it decides the Mississippi case in the next several months.