WASHINGTON, D.C. — The Supreme Court, which is set to take up a major abortion case later this term, heard oral arguments Oct. 12 on a procedural question on a state’s abortion law.
Specifically, the justices examined whether Kentucky’s attorney general, Republican Daniel Cameron, could defend an abortion law from three years ago that has been struck down by the lower courts.
And in the more than one hour of arguments, the justices seemed inclined to agree that he should be able to defend the law.
The Kentucky law banned an abortion procedure known as dilation and evacuation after the 15th week of pregnancy.
Here’s a recap of how this case came the court: Right after the abortion law was signed by the state’s then-governor, Republican Matt Bevin, in 2018, it was challenged and blocked by a federal judge who called it unconstitutional.
A year later, the state’s new governor, Democrat Andy Beshear — coincidentally, the state’s attorney general from 2015 to 2019 — named Eric Friedlander as Kentucky’s health and family services secretary.
Friedlander defended the law in the courts until the block on it was upheld by a three-judge panel of the 6th Circuit. He did not file for a review of the ruling by the full 6th Circuit.
Cameron, whose term also began in 2019, wanted to weigh in on this abortion law after Beshear and Friedlander dropped the case. So he asked the full 6th Circuit to reexamine the three-judge panel’s ruling. The appeals court rejected his case, saying he was too late with it, so he brought it to the Supreme Court.
Although this case hinges on an abortion procedure and there were some pro-life activists demonstrating outside the court that morning, the word “abortion” did not even come up until 45 minutes into the oral arguments, when Justice Stephen Breyer pointed out that Republicans and Democrats often hold differing views on abortion.
He indicated, as did the other justices, that this was more about what an attorney general can do.
“Why can’t he just come in and defend the law? I don’t see why he can’t,” Breyer said.
Justice Elena Kagan similarly noted a confusion that exists when “there’s nobody left defending the state’s law.”
The Kentucky case has the backing of a coalition of 20 state attorneys general, led by Arizona Attorney General Mark Brnovich, also a Republican, who filed an amicus brief in support of Cameron’s ability to defend the state’s abortion law.
After the oral arguments, Cameron said in a statement: “States recognize the important role they have in protecting life and preserving the ethics of the medical profession. Kentucky is no exception, and the overwhelmingly passage of our law banning live dismemberment abortions signifies the commitment of Kentuckians to extend dignity and compassion to the unborn.”
“When laws like this are challenged in court, they must be defended,” he added.
Carol Tobias, president of National Right to Life, said Cameron “should have the right to defend a legitimate state law regardless of the actions of other state officers.”
The case comes before the court just a month after the Supreme Court ruled against blocking a Texas abortion law banning abortions after six weeks of pregnancy, which sent the case back to the lower court.
On Dec. 1, the nation’s high court will take up a ban on abortions after 15 weeks of pregnancy in Mississippi, which has been described as a challenge to the court’s 1973 decision Roe v. Wade which legalized abortion nationwide.