Police set up a roadblock in front of the U.S. Supreme Court in Washington, DC, U.S., on Tuesday, October 12, 2021.
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The Supreme Court on Tuesday considered the Republican Attorney General’s application to defend a restrictive Kentucky abortion law, and some liberal judges sounded skeptical that lower courts have the power to refuse requests for intervention.
This case is not the only abortion-related battle in which the court and conservative judges will consider this term with a score of 6-3. As early as six weeks after pregnancy, the court had already gotten involved in the issue of polarization when it voted 5 to 4 not to block the Texas law prohibiting most abortions. The judges will hear the argument on December 1. This is a key case that challenges the pre-abortion rights established by Roe v. Wade for fetal viability.
Kentucky law HB 454 will largely prohibit the use of the “dilation and evacuation” procedure for abortion, which is the most commonly used method in the second trimester. It was signed into law in 2018, but the District Court declared it unconstitutional and the Court of Appeal upheld the ruling.
The Secretary of Health of Kentucky chose not to appeal the decision further-but the state’s Republican Attorney General Daniel Cameron tried to intervene, seeking another hearing to defend the law. The U.S. Court of Appeals for the Sixth Circuit rejected the proposal, saying Cameron’s motion came too late.
Kentucky Attorney General Daniel Cameron stands on the stage of the empty Mellon Auditorium during a speech at the Republican National Convention in Washington, DC on August 25, 2020.
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In the petition requesting the Supreme Court to hear the case, Cameron’s lawyer argued that when another state official refused to defend state law, the attorney general “not only has the power but also the responsibility” to intervene. He asked the High Court to reverse the judgment of the Court of Appeal and send the case back for further consideration.
The Surgical Center’s response briefing retorted that Cameron’s intervention proposal was invalid, partly because the Attorney General’s Office had previously agreed to be bound by the outcome of the case.
Tuesday’s oral debate did not focus on the merits of Kentucky’s abortion law, but on whether Cameron should be allowed to intervene after the appeals court’s ruling and the state’s other administrative departments opted out.
“If there is no prejudice against anyone, and I can’t see where there is prejudice, why can’t he come in to defend the law?” Judge Stephen Breyer told EMW Women’s Surgery, the only licensed abortion provider in Kentucky. The lawyer at the center asked Cameron.
“Now, he might lose,” Breyer said. “He might lose for the reasons you said. But I don’t understand why he can’t. If Kentucky allows him to make an argument, why can’t he make an argument?”
On Tuesday, September 28, 2021, the volunteer clinic escorted patients outside the EMW Women’s Surgery Center in Louisville, Kentucky, USA.
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Breyer later said that he might be confused by the facts of the case. But another liberal judge, Elena Kagan, pointed out that most of the conflict stemmed from the fact that the leadership of Kentucky changed parties during the proceedings.
Then-Gov. Republican Matt Bevin signed HB 454 into law in March 2018. The surgery center filed a lawsuit shortly afterwards, listing the then Democratic Attorney General Andy Beshear as the defendant, but his office was quickly removed from office. Later, following the appeal of the case, Bashir was elected governor of Kentucky and Cameron was elected attorney general. The state health secretary who is still involved in the lawsuit continues to defend the law until after the appeal decision, he said he will no longer do so.
Cameron’s lawyer told the court that the attorney general tried to intervene within two days of hearing that the secretary would stop defending the law.
“In the real world, this seems to be important. I mean, this creates a problem here, that no one defends state laws,” Kagan said.
“And I think what Judge Breyer said is,’Gosh, that would be an extremely strict judicial rule.'” If no one wants to defend the law, even if some parts of the Kentucky government still want the law to be defended, she Said.
The American Civil Liberties Union lawyer Alexi Kolbi-Molinas replied: “Regardless of whether or not jurisdiction rules are imposed, the bad results will not change.”