CASE PREVIEW

Justices to weigh Kentucky attorney general’s effort to intervene in abortion battle

When then-President Donald Trump released his updated list of potential Supreme Court nominees in September 2020, one name that garnered attention was that of Kentucky Attorney General Daniel Cameron, a protégé of Sen. Mitch McConnell, R-Ky.. Trump did not choose the 35-year-old Cameron to fill the vacancy created by the death of Justice Ruth Bader Ginsburg, but Cameron will nonetheless be represented at the Supreme Court on Tuesday, when the justices hear oral argument in his effort to defend a Kentucky law restricting abortion after another state official declined to do so.

The case, Cameron v. EMW Women’s Surgical Center, arises from a challenge to a Kentucky law, H.B. 454, that generally makes it a crime for doctors to use the “dilation and evacuation” method, the procedure most commonly employed to end a pregnancy during the second trimester. After the Kentucky legislature passed the law in 2018, Kentucky’s only abortion clinic and the doctors who perform abortions there went to federal court to challenge its constitutionality. They argued that, because the law effectively outlaws the most common procedure used during the second trimester, it imposes an undue burden on the right to an abortion before the fetus becomes viable – normally somewhere between 22 and 24 weeks.

The district court agreed with the challengers that the law is unconstitutional, and it permanently blocked Kentucky from enforcing the law. The state’s health secretary appealed to the U.S. Court of Appeals for the 6th Circuit. While that appeal was pending, Kentucky held its 2019 elections for statewide officers. Voters elected Andy Beshear, a Democrat, as the new governor and Cameron, a Republican, as the new attorney general. When Beshear took office, he appointed a new health secretary, Eric Friedlander, who continued to defend the law in the court of appeals. 

But after the court of appeals upheld the district court’s injunction prohibiting enforcement of the law, Friedlander declined to seek review of that ruling by either the full 6th Circuit or the Supreme Court. In the wake of the health secretary’s decision, Cameron filed a motion to intervene in the 6th Circuit proceedings to defend the law, followed by a petition for rehearing. In his motion, Cameron noted that the Supreme Court’s eventual ruling in June Medical Services v. Russo, a challenge to a Texas law regulating abortion providers then pending before the justices, could affect the dispute.

A divided 6th Circuit panel turned down Cameron’s request to join the case. It explained that Cameron’s plea had come “years into” the case, after both the district court’s ruling and the 6th Circuit’s opinion upholding that ruling. Granting a motion to intervene after the court of appeals has already issued its opinion, the court reasoned, would “provide potential intervenors every incentive to sit out litigation untill we issue a decision contrary to their preferences, whereupon they can spring into action.” Moreover, the court added, Cameron was seeking to intervene to file a petition for rehearing, which is itself a relatively rare move, to make an argument that the health secretary had not presented to the 6th Circuit on appeal, and that “Supreme Court precedent suggests … should be denied.” And there was no reason, the court concluded, that Cameron couldn’t have anticipated that the health secretary might not have sought further review of the 6th Circuit’s decision, “given that he himself represented the Secretary.”

Cameron went to the Supreme Court in October 2020, asking the justices to weigh in on whether he should have been allowed to intervene and, if so, to send the case back to the lower courts for another look in light of their June 2020 decision in June Medical. In March 2021, the court agreed to take up only the procedural question.

In the Supreme Court, Cameron framed the case as a “dispute about a State’s sovereign ability to defend its laws.” Under Kentucky law, he stressed, the attorney general has “the authority to defend state law when no other official will.” Moreover, he had filed his motion to intervene to defend the law before any appellate deadlines had run, so that his motion – which, he observed, Friedlander did not oppose – “asked only to exhaust the preexisting appellate remedies by pursuing rehearing and, if necessary, a writ of certiorari.” Therefore, he suggested, his motion “functioned to hand off the defense of Kentucky’s law from one state official to another before any appellate deadlines ran.”

The key question when someone seeks to intervene in a case after the court has already issued its decision, Cameron told the justices, is “whether the potential intervenor acted promptly given all the circumstances.” That is actually what he did here, he argued: He filed his motion to intervene “only days after” his office learned that the health secretary would no longer defend the law, and he filed his petition for rehearing by the deadline. The 6th Circuit’s decision denying his motion to intervene, Cameron contended, “undercut the Commonwealth’s choice to designate” him “as the official who can step in to defend state law.”

EMW Women’s Surgical Center framed the dispute very differently. When the clinic first sued to challenge H.B. 454 in 2018, its lawsuit had named as defendants both the state health secretary and the state attorney general (who, at that point, was Beshear). But early on in the lawsuit, the attorney general had agreed to be dismissed from the case while also agreeing to abide by the district court’s ruling. The attorney general’s office can’t enter the case now, the clinic wrote, because the office didn’t file a notice of appeal from the district court’s 2019 ruling. Allowing Cameron to intervene in the 6th Circuit in 2020, the clinic told the justices, “would create an impermissible end-run around Congress’s express statutory limits on appellate jurisdiction.”

Even if Cameron’s motion to intervene was not technically too late, the clinic continued, there is no reason to disturb the denial of that motion by the court of appeals. The clinic dismissed Cameron’s emphasis on state sovereignty as “a red herring”: The court of appeals, the clinic countered, “expressly recognized that state attorneys general may appropriately intervene to defend their states’ laws, and merely applied the ordinary rule that they must do so, like anyone else, in a timely fashion.”

And in any event, the clinic added, denying Cameron’s motion to intervene does not rob the state of its sovereignty. If Cameron believed that the Supreme Court’s decision in June Medical constituted a change in the law, so that it was no longer fair to prohibit the state from enforcing H.B. 454, the appropriate way to broach this claim was through a motion in the district court under the Federal Rules of Civil Procedure “after the law has changed, not a belated motion to intervene on appeal, before the Supreme Court has even ruled.”  

Arizona and 22 other states filed a “friend of the court” brief supporting Cameron in which they described the question presented by the case as one “of profound substantive importance to our democratic system of governance.” “States,” they wrote, “have a compelling and indisputable sovereign interest in defending the constitutionality of their laws when challenged in federal court.”

A group of law professors who study federal courts offered a different point of view in a brief supporting the clinic. Allowing Cameron to intervene now, they suggested, “would undermine the will of Congress and violate the separation of powers” by allowing him to circumvent the deadline for appeals that Congress has established. If this precedent is set, they cautioned, in the future someone could “simply sit on the sidelines while other parties litigate the judgment before the Court of Appeals. Then, the party could mount its 13th hour appeal through a purported ‘intervention.’”

This article was originally published at Howe on the Court.