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Supreme Court to hear Kentucky abortion case as Republican attorney general looks to intervene

U.S. Supreme Court
A general view of the U.S. Supreme Court building in Washington, U.S., November 15, 2016. |

The U.S. Supreme Court has agreed to hear an appeal in a lawsuit surrounding whether or not Kentucky’s attorney general can defend a law against dismemberment abortions that the state's Democrat Gov. refused to defend.

In an order issued Monday, the high court agreed to hear the case of Cameron v. EMW Women’s Surgical Center. However, they are limiting the scope of the arguments to whether Republican Kentucky Attorney General Daniel Cameron can intervene in the case.

“I promised Kentuckians that I would defend our laws all the way to the United States Supreme Court, and that’s what we’ve done,” Cameron said in a statement Monday.

“Since day one in office, we’ve fought to defend House Bill 454, even when the Beshear Administration refused to defend it. This law reflects the conscience of Kentucky by banning the gruesome practice of live dismemberment abortions, and it’s important that Kentuckians have a voice before our nation’s highest court. I was elected to provide that voice, and we look forward to making our case to the Supreme Court.”

According to Amy Howe of Scotusblog.com, Kentucky's health secretary initially defended the law in court but declined to continue appealing the case after the U.S. Court of Appeals for the Sixth Circuit struck down the ban. Cameron then asked the Sixth Circuit for permission to intervene in the case and defend the law. However, the Sixth Circuit declined that request, which led Cameron to appeal to the nation's high court for permission to intervene.  

The Susan B. Anthony List, a prominent pro-life lobbying organization, released a statement Monday expressing both support for the Supreme Court order and optimism over the outcome as it marks the first abortion-related case to be heard under the court's current 6-3 conservative majority. 

“It is encouraging news that the Supreme Court will hear this case,” said SBA List President Marjorie Dannenfelser in the statement.

“State legislators acting on the will of the people have both the duty and the right to protect their most vulnerable citizens – born and unborn. We look forward to seeing this right upheld.”

Known as House Bill 454, or the Human Rights of Unborn Children Act, Kentucky’s dismemberment abortion ban was signed into law in 2018 by then-Gov. Matt Bevin, a Republican. 

In April 2018, soon after the law was signed, a district court temporarily blocked it from taking effect. And in May 2019, a permanent injunction was put on the legislation.

In June of last year, a three-judge Sixth Circuit panel upheld the lower court decision in a 2-1 ruling. The majority argued that the law placed an undue burden on women seeking an abortion since it required them to undergo other, purportedly less safe, procedures.

“H.B. 454 conditions an individual's right to choose on her willingness to submit herself to an additional painful, risky, and invasive procedure,” wrote Circuit Judge Eric Clay for the court majority.

“At some point, that requirement itself becomes so onerous that it would substantially deter individuals from seeking an abortion. This is surely an undue burden.”

In dissent, Circuit Judge John Bush concluded that the plaintiffs, which included the state’s lone abortion clinic plus two other abortion providers, lacked the standing to bring the lawsuit.

“Plaintiffs' counsel was asked what EMW's physicians would do if a patient asked for fetal demise before a [dilation and evacuation abortion]. The answer of Plaintiffs' counsel made clear that the physicians would do nothing to honor this request and that her only option would be to travel out of state for the procedure,” wrote Bush.

“This admission and the evidence presented at trial demonstrate a potential conflict of interest that destroys Plaintiffs' standing to bring this facial constitutional challenge against H.B. 454.”  

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