ARGUMENT ANALYSIS

Justices appear inclined to allow Kentucky attorney general to intervene in abortion dispute

Anyone looking to the oral argument in Cameron v. EMW Women’s Surgical Center as a potential preview of the upcoming battle over abortion rights was likely disappointed on Monday. In Cameron, the justices are considering whether the Kentucky attorney general can intervene to defend a state law restricting abortion after another state official declined to do so. But the case proved to be mostly a dense procedural debate with relatively few references to the underlying abortion law, and by the end of the argument, Attorney General Daniel Cameron seemed likely to prevail – perhaps by a lopsided majority.

The law at the heart of the case, H.B. 454, generally makes it a crime for doctors to use the “dilation and evacuation” method, the most common method used to end a pregnancy during the second trimester. Kentucky’s only abortion clinic went to federal district court in Kentucky, arguing that the law is unconstitutional, and both the district court and the U.S. Court of Appeals for the 6th Circuit agreed. 

The dispute centers on Cameron’s efforts to intervene in the case to defend the law after Eric Friedlander, the state’s health secretary, decided that he would not seek review of the 6th Circuit’s ruling by either the full court of appeals or the Supreme Court. The court of appeals turned down Cameron’s request, explaining that it had come too late. That led Cameron to go to the Supreme Court, which agreed last spring to weigh in on whether Cameron should have been allowed to intervene.

Matthew Kuhn, the principal deputy solicitor general of Kentucky, represented Cameron. He told the justices (including Justice Brett Kavanaugh, who returned to the bench after testing positive for COVID-19 and participating in last week’s arguments remotely) that when Cameron moved to intervene in the case, he “simply sought to pick up where” Friedlander “had left off in this litigation.”

Kuhn’s primary questioner was Justice Sonia Sotomayor, who pointed to a stipulation that Kentucky’s previous attorney general signed when the case was still in the district court. Under that stipulation, the attorney general was dismissed from the lawsuit and agreed to be bound by any final judgment. When the prior attorney general did not appeal, Sotomayor asked, why would it be clearly unreasonable for the court of appeals, after it had issued its ruling, “to say we don’t really care what has happened in the political arena,” where both the governor’s office and the attorney general’s office changed parties? Why, Sotomayor concluded, couldn’t the court of appeals simply defer to the stipulation that the previous attorney general signed, agreeing to abide by the district court’s ruling?

Arguing for the clinic, lawyer Alexa Kolbi-Molinas stressed a similar theme. The attorney general, she contended, “agreed to be bound by final judgment and chose not to appeal it.” And even if Cameron were not strictly prohibited from intervening now, she continued, he still should not be permitted to join the case because “intervention is not a revolving door that allows a party to agree to be bound, procure their dismissal, fail to appeal, and then gain reentry to the suit after the court of appeals has ruled.”

But Sotomayor’s colleagues, including some of the other members of the court’s liberal bloc, were less convinced. Justice Stephen Breyer noted that “there have been a lot of party changes” in Kentucky. “First, the Republicans are in, then the Democrats are in, and they have different views on an abortion statute.” But if Kentucky law allows Cameron to defend the law, and there’s no harm to anyone else, Breyer posited, “and I can’t see where there is, why can’t he just come in and defend the law?”

Justice Elena Kagan followed Breyer’s question with one of her own. She acknowledged that the court has “a lot of law saying that even though the attorney general, the person, has changed and even the party has changed, it’s still the same legal entity.” “But,” she continued, “there’s a real-world way in which that seems to matter a lot” when one political party replaces another, “which is that there’s nobody left defending the state’s law. And I think what Justice Breyer is saying is: Gosh, that would be an extremely harsh jurisdictional rule or at least a counterintuitive rule if it ended up in a place where nobody was there to defend Kentucky’s law, even though there are significant parts of Kentucky’s government that still want its law defended.”

Chief Justice John Roberts questioned Kolbi-Molinas about a different case in which Cameron had tried to intervene before the 6th Circuit issued its opinion but the clinic opposed his intervention, arguing that his concerns about the need to intervene were too “speculative.” Noting that the clinic is arguing in this case that Cameron sought to intervene too late, Roberts wondered aloud whether “that’s really putting him in a catch-22. If it’s prior to the opinion,” then Cameron’s interests are already represented by the health secretary, but if “it’s after the opinion, he has waited too long.”

Kolbi-Molinas distinguished the two cases, emphasizing that Cameron had never been involved in the other case, but Roberts appeared unmoved. He suggested that it might “make more sense to have the attorney general out of the case when the secretary is representing the state. You don’t want the state speaking through two different voices,” Roberts said. “But,” he continued, “once the secretary is out of it, Kentucky maybe ought to be there in some form, and the attorney general is the one that wants to intervene.”

A decision in the case is expected sometime next year.

This article was originally published at Howe on the Court.