WASHINGTON (LifeSiteNews) — The U.S. Supreme Court ruled 8-1 Thursday that Kentucky’s Republican Attorney General Daniel Cameron has the legal authority to defend a pro-life law that had been abandoned by the state’s Democrat Gov. Andy Beshear.
In 2018, former Kentucky Republican Gov. Matt Bevin signed into law HB 454, which bans the dilation and evacuation (D&E) abortion procedure. D&Es are more commonly known as “dismemberment abortions” because they function by tearing a preborn baby apart limb by limb. Bevin was replaced by the pro-abortion Beshear in 2019, but Cameron, a pro-life Republican, was also elected to succeed Beshear in the attorney general’s office.
In 2019, the Sixth Circuit Court of Appeals deemed the law an “undue burden” on “all of the individuals it restricts,” and denied Cameron’s request to defend the law after Secretary of the Cabinet for Health & Family Services (CHFS) Eric Friedlander chose not to appeal the case.
“The threats to these sovereign interests are particularly acute in this case,” argued a brief to the Supreme Court filed by 20 states on Cameron’s behalf. “The Sixth Circuit panel majority deprived the Commonwealth of Kentucky from seeking complete appellate review of the District Court’s injunction invalidating one of its duly enacted laws. And it did so on purely procedural grounds, holding that the Kentucky Attorney General could not intervene to vindicate state law on appeal because a single state officer had decided to abandon defense of a law passed by both houses of its Legislature and signed into law by its Governor.”
Writing for the majority, conservative Justice Samuel Alito found that “no provision of law limits the jurisdiction of the courts of appeals in the way respondents suggest,” i.e., by barring the attorney general from filing a notice of appeal when he did so. Later in the opinion, Alito noted that Cameron sought to intervene in the case just “two days after learning that the secretary would not continue to defend HB 454,” and the “motion was also filed within a week after the Sixth Circuit issued its decision and within the 14-day time limit for petitioning for rehearing en banc.”
“In agreeing to be bound [by the ruling he was appealing], the attorney general specifically ‘reserve[d] all rights, claims, and defenses … in any appeals arising out of this action,’” Alito explained, “and this language easily covers the right to seek rehearing en banc and the right to file a petition for a writ of certiorari. In addition, the stipulation of dismissal made clear that the judgment to which the attorney general agreed to be bound was the judgment that emerged after all appellate review concluded.”
“Respect for state sovereignty must also take into account the authority of a State to structure its executive branch in a way that empowers multiple officials to defend its sovereign interests in federal court,” Alito added. “In this case, although the secretary for Health and Family Services apparently enjoyed the authority under state law to defend the constitutionality of HB 454, the secretary shared that authority with the attorney general.”
Liberal Justice Elena Kagan filed her own opinion, joined by outgoing liberal Justice Stephen Breyer, parting with some of Alito’s reasoning but concurring with his outcome.
The Court’s lone dissenting opinion came from liberal Justice Sonia Sotomayor, claiming that Cameron had “stipulated to his own dismissal as a party in the District Court and agreed to have another official represent Kentucky’s interests” before intervening. “I fear today’s decision will open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties,” she wrote, “undermining finality and upsetting the settled expectations of courts, litigants, and the public alike.”
Today’s ruling in Cameron v. EMW Women’s Surgical Center, P.S.C. does not set precedent for abortion law itself, but is likely to have ramifications for how much discretion attorneys general of one party have in states where the other party occupies the governor’s mansion. Last year, the Kentucky legislature enacted a law over Beshear’s veto empowering the attorney general to enforce abortion restrictions independent of the governor’s office.
Regarding the underlying policy dispute, abortion defenders have long objected to the “dismemberment” label as inflammatory and misleading, even though the abortion industry itself has effectively admitted its accuracy. The National Abortion Federation’s (NAF’s) own instructional materials describe dismemberment abortions as “grasping a fetal part,” then “withdraw[ing] the forceps while gently rotating it” to achieve “separation.” Notorious late-term abortionist Warren Hern has described D&Es even more candidly: “[T]here is no possibility of denial of an act of destruction by the operator. It is before one’s eyes. The sensations of dismemberment flow through the forceps like an electric current.”
Defenders also claim that dismemberment abortions are the safest second-trimester procedure available (for the mother), but pro-lifers suspect the real reason abortionists prefer D&E abortions is because they can fit more into their schedule, and therefore make more money.
As for the legal permissibility of dismemberment abortion bans, pro-lifers note that in 2000’s Stenberg v. Carhart, the pro-abortion Supreme Court Justice John Paul Stevens admitted that partial-birth abortion and dismemberment abortion were “equally gruesome,” and that it was “simply irrational” to conclude that one was “more akin to infanticide than the other.” Stenberg struck down the federal partial-birth abortion ban, but Gonzales v. Carhart ultimately upheld it in 2007.