WASHINGTON — The Supreme Court on Tuesday will consider whether Kentucky’s attorney general can defend a state abortion law that bans a surgical procedure commonly used in the second trimester of pregnancy.
Immediately after the law was signed by then-Gov. Matt Bevin, a Republican, in 2018, a Louisville women’s surgical center challenged the measure in court. A federal judge found the law unconstitutional in 2019, concluding that it restricted a woman’s 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. At that point, the state health official who had defended the law decided not to file any further appeals.
But after Republican Daniel Cameron was elected as the state’s attorney general in 2020, he asked the full 6th Circuit to take another look at the law, which restricted a procedure known as dilation and evacuation. The appeals court turned him down, saying he came to the process too late.
Cameron said that the appeals court’s refusal to let him defend the law has blocked him from doing what state law requires of him. He said other federal court rulings have allowed state attorneys general to intervene during the later stages of litigation.
Representing the surgical center, the American Civil Liberties Union said the appeals court’s ruling was “merely the routine application of the rules,” adding that the law at issue “would effectively prohibit abortion in Kentucky after the first weeks of the second trimester.”
The issue before the Supreme Court is whether the attorney general can try to reinstate the law at this late stage, a technical point that, given the law in question, has turned the case into something of proxy fight on abortion.
If Cameron succeeds before the Supreme Court, he can ask the full appeals court to take up the constitutionality of the state law, but there’s no guarantee that it will.
The Supreme Court justices won’t take up Mississippi’s direct challenge to Roe v. Wade until Dec. 1.