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Supreme Court must decide if Kentucky GOP attorney general can defend restrictive abortion law

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A man walks past barbed wire and security fences that surround the United States Supreme Court in Washington, January 26, 2021.

Al Drago | Reuters

The Supreme Court said Monday it would hear a plea from the Kentucky Republican attorney general to allow him to defend a state law restricting a type of abortion procedure frequently targeted by conservatives.

Anti-abortion supporters have hoped the Supreme Court, which now has a 6-3 Republican-appointed majority, will cut back on past cases extending abortion rights.

The Kentucky case, however, is about a narrower legal issue and is unlikely to have wider ramifications for laws affecting reproductive rights.

The bill, known as HB 454, regulates “dilation and evacuation,” a common method of abortion often used during the second trimester. He passed in 2018.

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Kentucky’s only licensed abortion clinic, EMW Women’s Surgical Center, challenged HB 454. The clinic sued the state attorney general – who at the time was Democrat Andy Beshear – as well as Secretary of State. health and family services. The health secretary led the defense of the law after Beshear asked to be fired as a defendant.

A district court struck down the law. This decision was upheld by the 6th US Circuit Court of Appeals. The appeals court cited the 2016 Supreme Court case Whole Woman’s Health v. Hellerstedt. While the case was being debated, Republican Daniel Cameron succeeded Beshear as attorney general of Kentucky, and Beshear was elected governor.

The Kentucky health secretary decided not to appeal the case after losing in the 6th Homer. Cameron tried to intervene in the case to do so, but the appeals court rejected his effort, saying it was too late.

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In his petition with the judges, Cameron argued that the appeals court’s rejection of his effort “is an affront to state sovereignty.”

“The Sixth Circuit has closed the doors of the courthouse to the very person Kentucky law empowers to represent Commonwealth interests in court,” Cameron wrote in the filing.

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Cameron also argued that an appeal was likely to be successful following the Supreme Court’s decision in June Medical Services v. Russia in 2020. June Medical Services may have limited the scope of the court’s earlier decision in Whole Woman’s Health.

EMW Women’s Surgical Center, represented by the American Civil Liberties Union, had urged the judges not to take the case.

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In a legal brief, the clinic wrote that the attorney general “had previously agreed to be dismissed from the case and be bound by the judgment” and “could have sought to intervene earlier.”

The clinic added that while the case was indirectly related to the abortion, it was not an abortion dispute.

“While the substance of this case concerns the constitutionality of an abortion law, the question posed by this petition is only whether a motion to intervene was filed in a timely manner,” he wrote.

The Supreme Court will consider the case during its tenure starting in the fall, and a decision will likely be rendered by summer 2022.

The case is Daniel Cameron v. EMW Women’s Surgical Center, # 20-601.

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