Supreme Court appears open to allowing Kentucky Attorney General to defend law banning the abortion of living unborn children

By Dave Andrusko

First rule of thumb when listening to oral argument in court. Don’t mistake sympathetic questions for agreeing with one party (or the other).

That huge caveat aside, it does appear as if the Supreme Court may be open to allowing Kentucky Attorney General Daniel Cameron to defend the state’s ban on dismembering living unborn children. That does not translate into accepting the constitutionality of S.B. 8., but it does mean he may be able to persuade the justices to return the case to the 6th Circuit Court of Appeals.

Background

EMW Women’s Surgical Center, the state’s lone abortion clinic, immediately challenged the law when it was enacted in 2018. First a federal judge, and then later the 6th Circuit, agreed the law was unconstitutional.

At that point, given the option of proceeding or not, the state health official, appointed by a pro-abortion governor who previously defended the law, decided not to file any more appeals. Newly elected Cameron appealed to the 6th Circuit which ruled he waited too long. Cameron then appealed to the Supreme Court.

“At issue for the high court is a procedural question,” wrote John Fritze for USA Today. “Whether Cameron, a Republican, may defend the law after Gov. Andy Beshear, a Democrat, said his administration no ‘longer would. If the answer is ‘yes,’ that would allow Cameron to appeal a ruling from the U.S. Court of Appeals for the 6th Circuit that struck down the law as unconstitutional.”

Judging by the question (and remembering the caveat), Pete Williams of NBC News predicted, “The Supreme Court seemed inclined Tuesday to let Kentucky’s attorney general try to defend a state law, currently blocked by the lower courts.”

For example, “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?” He added, “I don’t see why he can’t – if Kentucky law allows him to make the argument, why can’t he make the argument?”

Added Chief Justice John Roberts , “The situation changes when the deck is shuffled again after an election.”

Cameron told USA Today that state lawmakers “have empowered the agency’s office to be a failsafe, if you will, regardless of what other offices might do, whether it’s the governor’s office or any branch of the executive administration that might decide that they don’t want to defend the law.”

The justices “won’t take up Mississippi’s direct challenge to Roe v. Wade until Dec. 1,” Williams concluded. “Decisions in both cases will likely be issued by late June.”